Ban on women's night work finally to be abolished

Austria has until the end of 2001 to bring its national legislation on night work into line with EU law, thus lifting current restrictions on night work for women. However, an unofficial draft amendment presented by the minister of economic and labour affairs in May 2001 provoked parliamentary opposition and criticism from employees' organisations, which want the new regulations to include measures to alleviate the burden of night work for both women and men alike.

When Austria joined the European Economic Area on 1 January 1994, it still had in place a formal ban on night work for women. Furthermore, Austria has ratified the 1919 International Labour Organisation (ILO) Convention No. 4 on women's night work and the revised 1948 Convention No. 89 concerning the night work of women employed in industry, which prohibit such work by women. As an ILO member country may denounce Convention No.48 only at 10-year intervals after the date on which it first came into force - and then within a "window" of one year - Austria could denounce the Convention in February 2001 at the earliest. However, despite case law from the European Court of Justice (ECJ) condemning bans on women's night work, Austria's legal regulation on this issue was declared permissible up to the end of 2001 under the terms of a proviso made by the European Union (which Austria joined in 1995). Austria has until the end of 2001 to reform its regulations on night-time employment in a gender-neutral manner, in accordance with the 1976 EU Directive on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (76/207/EEC).

The current situation

The general ban on women's night work was eased by a number of exceptions and exemptions allowed under the 1969 Night Work of Women Act (Frauen-Nachtarbeitsgesetz). In 1998, an amendment to the Act further relaxed this ban by permitting the social partners to conclude collective agreements providing for night work for women between 22.00 and 06.00 (AT9802163F). The mandatory requirements which must be met by collective agreements on women's night work include providing for the right to return to a day-time occupation in the event of a proven health hazard, along with measures to compensate for or alleviate the burdens of night work. Austria's metalworking sector was the first to negotiate a collective agreement on women's night work, which provides for far more restrictions than foreseen in the EU equal treatment Directive (AT9803174N). Thus, for example, special consideration has to be given to employees' necessary care requirements for children up to the age of 12.

Apart from the metalworking industry, only a small number of branches have so far utilised the possibility opened up by the 1998 legislation, such as the food industry and the printing and paper industry. Altogether, there are currently 113,000 women and 248,000 men who work at night between 22.00 and 6.00 - approximately 10% of all employed persons. Details by sector are provided in the figure below.

Men and women involved in night work, by sector, 2001 (thousands)

Source: APA, Oestat.

Dispute over gender-neutral night work law

In May 2001, the minister of economic and labour affairs, Martin Bartenstein, presented an unofficial draft containing a number of measures aimed at further transposing the EU equal treatment Directive into Austrian legislation. The proposed measures include:

• abolishing the Night Work of Women Act;

• adjusting current regulations on night-time employment;

• introducing regular medical examinations for nightshift employees; and

• giving employees the right to move to a day-time position if the night work is hazardous for their health

While the coalition government of the populist Freedom Party (Freiheitliche Partei Österreichs, FPÖ) and the conservative People's Party (Österreichische Volkspartei, ÖVP) intends to delegate negotiations over more detailed night work regulations to the social partners, the parliamentary opposition - consisting of the Social Democratic Party (Sozialdemokratische Partei Österreichs, SPÖ) and the Greens (Die Grünen, GRÜNE) - along with employees' organisations are demanding a legal framework that includes measures to balance the burden of night work for both women and men alike. Furthermore, Renate Csörgits, who coordinates gender policies within the Austrian Trade Union Federation (Österreichischer Gewerkschaftsbund, ÖGB), states that "pregnant women as well as apprentices must not be employed during nightshifts".

Five SPÖ members of parliament urgently requested the National Council (Nationalrat, the lower house of parliament) to adopt a resolution containing a list of demands and suggestions on night work. One of the most important of these concerned reducing daily working hours during nightshifts to a minimum, in particular for employees with heavy and hazardous working conditions. In addition, the SPÖ parliamentarians demanded a system of compensation for night work to be introduced in the form of 10% additional time off in lieu. Other key suggestions included the right to move to a day-time position if one of the following conditions applies: danger to the employees' health; care of a child under 12 or with a considerable disability; and care of relatives who need such attention.

The effort to find a majority for the resolution failed and the lower house rejected it, with the coalition parties voting against. At the same time, parliament voted in favour of the denunciation of the 1948 ILO Convention prohibiting night work of women employed in industry.

Commentary

As Martin Bartenstein, the minister of economic and labour affairs, has recently on a number of occasions failed to push through legislative amendments against the opposition of the social partners, the SPÖ and the Greens (AT0107221N), the coalition government has become more cautious. A new ministerial proposal to amend the current legislation on night work in accordance with EU law seems likely to be presented in autumn 2001 at the earliest. (Susanne Pernicka, University of Vienna)