New night work legislation applies to both women and men

In July 2002, the Austrian parliament adopted new legislation on night work to replace the existing ban on night work for women, which must be abolished due to EU law. However, the new law, regulating night work in a gender-neutral manner, provides reduced protection for female employees in comparison with the former legislation, and does not meet the demands of trade unions

With Austria's accession to the European Union in 1995, labour law provisions providing specific protection for female employees had to be adapted to Community law, which deems a specific ban on night work by women as unlawful. Thus, Austria was obliged to reform its regulations on night-time employment up by the end of 2001 (AT0107222F). The coalition government of the conservative People's Party (Österreichische Volkspartei, ÖVP) and the popular Freedom Party (Freiheitliche Partei Österreichs, FPÖ) failed to meet this deadline.

The social partners were invited by the minister of economic and labour affairs, Martin Bartenstein, to negotiate over new night work regulations during the course of 2001, but did not reach an agreement on this issue. The minister himself thus presented a bill in April 2002, that was finally passed by parliament on 11 July 2002 - although the parliamentary opposition, consisting of the Social Democratic Party (Sozialdemokratische Partei Österreichs, SPÖ) and the Greens (Die Grünen, GRÜNE), voted against.

The new regulations

The law passed by parliament in July (EU-Nachtarbeits-Anpassungsgesetz) replaces the 1969 Night Work of Women Act (Frauen-Nachtarbeitsgesetz), which provided for a general ban on women's night work - though this ban was eased by several statutory exceptions and clauses laid down in collective agreements. The new regulations stipulate that employees - regardless of gender - are considered to be night workers if they work at least three hours between 22.00 and 05.00 on at least 48 nights per year. In general, the average daily working time for night workers is limited to eight hours. In the event of working time extensions due to stand-by duties, the employer has to grant additional time off for rest.

The new legislation provides a legal right to periodical medical check-ups free of charge for night working employees. Moreover, in the cases of a threat to the employee's health, or of indispensable obligations concerning children up to the age of 12 years, the night worker is entitled to move to a daytime job provided that this is feasible for the company. Thus, Austria's legal provisions on night work regulation now meet the requirements of Community in terms of gender-neutrality on the one hand and of workers' protection on the other. However, they do not provide better standards than laid down in the relevant EU law and provide reduced protection for female employees in comparison with the former legislation, a point criticised by organisations representing employees. In this respect, the government has adopted in its legislation the position of the Austrian Chamber of the Economy (Wirtschaftskammer Österreichs, WKÖ) rather than that of the Austrian Trade Union Federation (Österreichischer Gewerkschaftsbund, ÖGB), since the former has always warned that tightening up the night work restrictions for both women and men would increase costs for business.

Employee representatives' positions

Given the obligation to reform the Austrian night work legislation, both ÖGB and the Chamber of Labour (Arbeiterkammer, AK) elaborated a list of demands for an improvement in night work conditions for all - female and male - employees, most of which have not been taken into consideration by the coalition government. Supported by several medical experts stressing the detrimental impact of night work on employees' state of health, the key demands of ÖGB and AK focused on working time reduction, continuous medical observation, and enforceable rights to be given an appropriate daytime job in the case of unacceptable circumstances. The details of these demands were as follows:

• in contrast to the adopted legislation, night work protection should apply to all employment within the period between 22.00 and 06.00, if at least two hours of daily working time on at least 20 days per year fall within this period;
• each hour of night work should give employees a 10% time credit (ie six minutes), that must not be compensated by the employer in cash, but must be taken by the night worker as time off;
• instead of only a right to medical check-ups for the individual employee, as provided by the new law, ÖGB and AK favoured a provision obliging employers periodically to initiate such check-ups for all night workers; and
• where night work is unacceptable for social and/or health reasons, the night worker should be entitled to move to an appropriate daytime job. Although the new legislation - in general - provides such a right, it seems to be qualified by the formulation 'according to the company's possibilities'.

Commentary

The positions of ÖGB and AK, which were supported by SPÖ and GRÜNE in parliament, were only partially embodied in the new night work legislation. The abolition of the ban on women's night work is likely to increase the number of female employees performing night work, since a growth in such 'atypical' forms of employment has been characteristic of the Austrian labour market, in particular for women. The main reason for this trend is that flexible work (obviously) eases the compatibility of work and family life for women, in line with the still prevailing 'male-breadwinner' model.

Although flexible work offers an opportunity for many women to have access to working life, especially for those who are not prepared to take a standard full-time job, some employees' representatives and researchers have repeatedly emphasised that the increasing share of atypical work done by women will preserve the existing gender-specific labour market segregation. This will probably hold true as long as the main burden of reconciling work and family life must be borne individually by women. Alternatively, the state may improve the employability of women by such means as providing childcare facilities, enabling women to accept standard full-time jobs.

In this respect, the new night work legislation focuses rather on 'empowering' women who are not prepared for standard daytime jobs. (Georg Adam, University of Vienna)