WORKING HOURS/WORKING TIME
|WORKING HOURS/WORKING TIME
As in other industrialized countries, legislators and social partners in Austria have laid down extensive regulations which impose restrictions on the parties to an individual contract of employment as regards the working hours to be agreed. The main purpose of such regulations is to protect employees against excessive demands from the employer which are injurious to their health, and to that extent law on working time can rightly be classed as part of law on employee protection. Over the past few decades, however, this aspect has been joined by other objectives; in particular, labour-market policy factors and general economic considerations underlie the development of so much working time regulation.
Rules on working hours are laid down in, for example, the Working Time Act (Arbeitszeitgesetz) and the Act on Rest Periods (Arbeitsruhegesetz). Apart from these provisions, the rules on the matter laid down in the applicable collective agreements and works agreements are also important. Such collectively agreed rules have gained growing significance in recent years, as the legislators have increasingly begun to grant the parties to collective agreements and works agreements the right to derogate from the (mostly) rigid statutory restrictions, as a way of opening up more scope for the parties to the individual contract of employment to arrange working hours. The purpose, in other words, is to allow greater flexibility so that the specific circumstances in particular branches of activity and establishments can be accommodated while still basically observing the central objectives of law on working time.
a) Normal working hours
As normal working hours (Normalarbeitszeit), the law restricts the working day to a maximum of 8 hours and the working week to a maximum of 40 hours. Any time worked above the collectively agreed working hours up to these limits is classed as Mehrarbeit, i.e. extra hours paid at the normal rate, while any time worked over and above these limits is in principle classed as overtime (see below) and permitted only in certain circumstances and subject to precise upper limits. A more flexible arrangement of normal working hours is, however, possible as follows. In order to arrange a longer weekly or daily rest period (see below), the parties to the individual contract of employment may agree on a regular reduction of normal working hours on particular days, with the shortfall made up by distributing it over the other days of the week subject to observance of a maximum normal working day of 9 hours. In order to absorb “bridging days” (Fenstertage, i.e. working days intervening between two non-working days and likewise taken off work), the parties to the contract of employment may extend normal working hours to 10 hours on individual days within a 7-week reference period (or to 9 hours if the collectively agreed reference period is longer). Collective agreements (or, by delegation, works agreements) may permit the normal working week to be extended to a maximum of 48 (in certain cases 50) hours within a reference period of up to a year, provided that it does not exceed 40 hours (or any shorter working week laid down by the relevant agreement) as averaged over that reference period. A normal daily maximum of 9 hours must still be observed, but if the adjustment is applied in continuous periods of several days (several weeks in certain cases) the collective agreement may allow this maximum to be extended to 10 hours. Special regulations apply to categories including employees in the retail sector and the construction industry, shiftworkers (Schichtarbeiter), hospital staff and lorry drivers. If flexitime is introduced (see below), although the normal daily maximum of 9 hours applies the relevant collective agreement may allow this to be extended to 10 hours or authorize the parties to works agreements to do so. On large construction sites where work is going on in the public interest, the relevant collective agreement may allow the normal working week to be extended to over 40 hours provided that the daily limit of 9 hours is observed and that the weekly maximum is not exceeded as averaged over two weeks (a system referred to as Dekadenarbeit, i.e. fortnightly working). Where working time regularly includes extensive on-call duty (Arbeitsbereitschaft), defined as a situation where the employee is required to be present at the workplace and ready at all times to be called on to work immediately, the relevant collective agreement (in certain cases the works agreement and in others the Labour Inspectorate) may allow the normal working week and day to be extended to up to 60 and 12 hours respectively, and even more extensive exceptions are possible in cases where the employee also has special opportunities for relaxation during these working hours.
b) Part-time work
In the case of part-time work (Teilzeitarbeit), defined as an arrangement whereby the normal weekly working hours agreed under the individual contract of employment are, on average, shorter than those laid down by law or collective agreement, the extent and actual scheduling of working hours are agreed under the contract just as they are for full-time work. The employer, therefore, may vary these arrangements only if the contract contains prior provision for any such variation, there are objective reasons for doing so, no admissible circumstances to the contrary exist on the employee's side and the employee is given at least two weeks' notice of the scheduling of working hours for the week concerned. Part-time workers may be compelled to work extra hours (Mehrarbeit) only if such an obligation is laid down by individual or collective agreement, there is an increased demand for labour or preparatory and shutting-down tasks (Vor- und Abschlussarbeiten) need to be carried out, and no admissible interests to the contrary exist on the employee's side.
c) Overtime Normal working hours may be exceeded through the use of overtime (Überstundenarbeit) only by 5 hours a week (with an extra 60 hours for use within a given year), subject to upper limits of 50 and 10 hours for weekly and daily working hours respectively. The relevant collective agreement may, however, allow an additional 5 hours a week to be worked (10 hours in certain branches of activity). In the event of an unusual demand for labour, in order to avoid disproportionate cost to the business the works agreement may allow maximum working hours to be extended up to 60 hours, and in exceptional cases, when urgent work is necessary in order to avoid immediate danger to human life or safety, even the specified limits may be exceeded. Employees may not be required to work overtime arbitrarily or as and when requested. According to law, such an obligation exists only if the performance of overtime is specified in their contract of employment or collective agreement, if no objectively stronger interests to the contrary exist on the employee's side and if there is either an increased demand for labour or preparatory and shutting-down tasks to be done (in this last case up to 30 minutes' overtime a day may be imposed). All overtime attracts, over and above normal pay, an overtime premium (Überstundenzuschlag) equal to 50% of normal pay, and some collective agreements stipulate rates higher than this for overtime worked at weekends, on public holidays (see below) or after the end of the normal working day at 2000 hrs (Feierabend).
d) Breaks and rest periods scheduled break (Ruhepause) of at least 30 minutes must be granted where daily working hours exceed 6 hours, and in certain circumstances this may also be divided into several shorter breaks. After the end of daily working hours, employees are entitled in principle to an uninterrupted break of at least 11 hours before the commencement of the next day's work (tägliche Ruhezeit, i.e. daily rest period). In addition, all employees are entitled to an uninterrupted weekly rest period of 36 hours which must include Sunday (in which case it is referred to as Wochenendruhe, i.e. the weekend rest period) or, where they also work at weekends as permitted, to an uninterrupted rest period of 36 hours granted in lieu which does not fall at the weekend and must include one entire weekday (in which case it is referred to as Wochenruhe, i.e. weekly rest period in lieu). By way of exception, during the weekend rest period (and as a rule also on statutory public holidays: see below), employees may be employed on cleaning and maintenance work, nursing and care activities or supervisory and security duties. The types of work that may be exempted, by ministerial order, from the relevant ban on Sunday working (Sonntagsarbeit) include work which is necessary to meet essential needs or manage transport and communications, requires continuous operation for technological reasons, cannot be postponed owing to the risk that raw materials will deteriorate or is necessary to meet leisure, recreational or tourism requirements. Special regulations govern weekend work by, for example, employees at fairs and markets, transport workers, hospital staff and the drivers of certain vehicles. Further exemptions from the ban on Sunday (and public holiday) work may be established by collective agreement where this is nececessary in order to avoid a business disadvantage and to preserve jobs. In the case of fortnightly working (see above), the relevant collective agreement may even allow the weekly rest period to be dispensed with altogether for individual weeks, provided that one weekly rest period of 36 hours is ensured within a 4-week reference period. It is notable that employees in the retail sector may also be employed on Saturdays after 1300 hrs, to the extent that it is permissible for the shops concerned to stay open (normally until 1700 hrs; on certain Saturdays even until 1800 hrs). Although shopworkers who have worked after 1300 hrs on a Saturday are entitled in principle to have a whole day off on the following Saturday, the relevant collective agreement may provide otherwise. On public holidays (there are 13 statutory public holidays in Austria) all employees are entitled to an uninterrupted rest period, with full pay, of 24 hours (Feiertagsruhe). Any work done on public holidays (see above) is paid at a 100% premium, i.e. double rate.
e) Classification as working time The question whether stand-by (Rufbereitschaft: defined as the situation where employees, although they may remain at a place of their choice, must be reachable and ready to report for work within a reasonable delay) and work-related travel time on business trips and the like (Reisezeit) count as working time and are hence subject to the relevant legal restrictions was for many years a matter of dispute. The most recent amendments to the Working Time Act established explicitly that stand-by duty does not constitute working time, whereas travel time (in principle) does. The Act, however, limits the right to arrange stand-by duty in stipulating that only 10 days' such duty a month may be agreed individually (although more may be allowed by collective agreement). In the case of work-related travel time, the Act specifies that it is permissible for the statutory upper limits on working hours to be exceeded, and the minimum daily rest period to be shortened, as a result of such time counting as working time.
f) Flexitime As regards flexitime (gleitende Arbeitszeit or Gleitzeit), the law stipulates that it may be introduced only under a works agreement (thereby specifying another instance of mandatory co-determination). If no works council exists, a written agreement with each individual employee is required. Flexitime agreements must have a minimum content specifying: (i) the reference period over which flexitime is calculated; (ii) the length of the flexible periods at either end of the working day during which employees are free to choose their own times for starting and finishing work; (iii) the maximum extent to which time credits and debits may be carried over into the next period (if this limit is exceeded, the work counts as overtime); and (iv) the duration and scheduling of notional normal working hours (circumstances preventing the employee from working and creating a situation of impossibility of performance (Dienstverhinderung) which fall within these hours are covered by the obligation on the employer to continue paying employees: see continued payment of remuneration). Under flexitime arrangements, normal daily working hours must not exceed 9 hours (extendible to 10 hours by collective agreement).
g) KAPOVAZ Owing to all the legal restrictions regarding working hours, and especially the obligation on the employer to give as much as two weeks' advance warning of any change to the scheduling of working hours, in Austria the use of KAPOVAZ contracts providing for variable working hours unilaterally determined by the employer is possible only within narrow limits. Furthermore, prevailing legal opinion holds that a contractual arrangement whereby the employer reserves the right to call on the employee's labour only as and when operational needs so dictate is in any case contra bonos mores and hence invalid.
h) Job sharing Although what is referred to as the job sharing model is widely discussed at international level, in Austria this form of job design is hardly practised at all and therefore not as yet fully regulated. Legal restrictions seem likely, in particular, regarding the customary obligation on employees who are employed under a job sharing arrangement to act as replacements for each other when one of them is unable to work.