The issue of automatic collection and processing of data on individual employees is comprehensively covered under Austrian law. However, employees and works councils apparently make less than comprehensive use of the law, often owing to lack of expertise.
Two laws in Austria regulate electronic surveillance at work. The first is the Labour Constitution Act 1974 (Arbeitsverfassungsgesetz, or ArbVG), especially sections 91 and 96. Amongst many amendments to this law, only the one enacted in 1986 is important in relation to this topic, as it introduced section 96a. The second law is the Employment Contract Law Adaptation Act 1993 (Arbeitsvertragsrechts-Anpassungsgesetz).
Measures of control and technical control systems, if they touch upon human dignity, may be introduced only with the consent of the works council. Any measures infringing human dignity are unlawful. Measures that touch on human dignity without infringing it include:
In all these cases and others, as established by jurisdiction, measures may be implemented only by written agreement with the works council. In 1986, the law was amended specifically to include all computer-based personnel information systems collecting more than the most basic data on individuals and their qualifications, and all information exceeding immediate production purposes. In these latter areas, a conciliation board may overrule works council opposition. Furthermore, since 1986 the employer has been obliged by law to inform the works council of employee data gathered or processed automatically, and of any processing and transfer of these data. The works council has to be given access to system documentation or even to the system itself on demand to assess not only what is being done but also what could potentially be done. On this, trade unions and the Chamber of Labour offer advice because works councils themselves, as a rule, will not be able to undertake such an assessment. However, the works council cannot look at the data referring to individual employees unless they themselves have consented to this, or the law provides for such access, as is the case with incomes data.
A general constraint on employer and works council is laid down under the Data Protection Act (Datenschutzgesetz) of 1978. Anybody is entitled to secrecy of personal data. It is therefore unlawful for the employer to collect data on anything that is not immediately relevant to the purpose of the enterprise - specifically data on private interests, relationships, religious or political orientations or the like. Finally, in 1993 the introduction of measures of control and of technical systems touching upon human dignity in the absence of a works council was declared unlawful, except by consent of the employee. Consent may be withdrawn at any time unless there is a written agreement between employer and employee on its terms. Until then, such measures or systems could be introduced freely in establishments without works councils.
The investment in electronic systems capable of providing detailed individualised data is often not motivated primarily by a wish for such data. Frequently it is the introduction of performance-related pay, the intention to raise the efficiency of book-keeping, or simply the decision to increase communications capacity that leads to the installation of systems inherently capable of allowing individualised surveillance. While management tends to be aware of the added benefits the system will provide, this is not necessarily true of the works council. Such works council awareness is more likely when the establishment or company is large enough for at least one member of the works council to be a full-time works councillor, that is, with over 150 employees (Section 117 of the ArbVG requires companies with 150 or more employees to allow one works councillor to be paid full time for works council duties if the works council so requests.)
Corporate "chip cards" currently in use may have up to 16 applications installed on them. They can: trigger time clocks in passing; function as keys to gates and office doors; be needed to log into the computer, the cash register, or the manufacturing machine; and register the handing over of work clothes or purchases in the in-company shop or cafeteria. Many of these functions can also be performed by simpler "bar-code cards".
Trade unionists maintain that the introduction of electronic time control is often coupled with a narrower definition of working time, or at least with disputes over its definition. Whereas entering company premises, such as the car park, on time was in the past often considered sufficient, the introduction of automatic time control may now allow tighter definitions of "starting work", such as logging on to the computer.
According to manufacturers of such systems, about 20,000 companies in Austria use electronic time control. They reckon that half the works councils are vehemently opposed to it. There is a large and growing number of works agreements on control systems but the precise number of either agreements or employees covered by them is not known. A press report quoted an expert at the Union of Salaried Employees (Gewerkschaft der Privatangestellten, GPA) who speculated that half the employees in the private sector, that is about 1.3 million people, are already controlled electronically. He saw the main problem as the increased work stress resulting from the individualised productivity data that the systems make available.
The legal coverage of the issue is seen as comprehensive. Any problems rest with making adequate and sufficient use of the legal means available. At the GPA, it is said, hardly a day passes without a request from a works council for assistance in drawing up a works agreement on some form of electronic data gathering. The GPA employs three specialists in the field. Almost weekly they are called to talk at staff meetings on the issue. Other trade unions do not have a similar infrastructure, though somebody may be responsible for this duty, among others. At the Austrian Trade Union Federation (Österreichischer Gewerkschaftsbund, ÖGB) the electronic control issue is embedded in a bundle of issues relating to the humanisation of work, technology and the environment. Both the ÖGB and the GPA regularly offer courses for works council members on issues surrounding automatic data gathering. On a few occasions, interest has been insufficient for the course actually to take place, though 90% of the courses are booked well enough to proceed. The GPA also issues a newsletter three or four times per year covering this and other technology-related matters.
In most cases, so it seems, works councils do make use of the services offered by the trade unions before the system has been installed. In some instances, they wake up to the possibility and the need for a works agreement only after the event. No recent cases are known of protests from a workforce against the use made of data.
The lack of data on the issue of electronic control is astounding. By and large, there is not much sensitivity to the issue of control. This may be attributable, in some part, to a general respect for authority in Austrian culture. It may also be partly owing to the fact that data gathering is generally not about repression or observation of the employee, but about controlling and regulating the production process. The latter is generally deemed legitimate and workers or works councils often fail to notice the inherent potential for surveillance. It is not clear in how many instances companies gather information they were not authorised to collect and what sort of use they make of it. Given the lack of protest, employees apparently do not perceive problems. (August Gächter, IHS)