Thematic feature - implementation of the EU framework equal treatment Directive
This article examines the Austrian situation, as of August 2003, with regard to the implementation and impact of the 2000 EU Directive establishing a general framework for equal treatment in employment and occupation, which seeks to combat discrimination on the grounds of religion or belief, disability, age and sexual orientation.
The EU Directive establishing a general framework for equal treatment in employment and occupation (Directive 2000/78/EC) was adopted in November 2000 (EU0102295F). The Directive seeks to lay down a general framework for combating discrimination, as regards employment and occupation, on the grounds of: religion or belief; disability; age; and sexual orientation. It is to be implemented by the EU Member States by 2 December 2003 (with a possible later deadline for the provisions on age and disability discrimination, if Member States see this as necessary).
A Community Action Programme to combat discrimination 2001-6 was also adopted in November 2000 (EU9912218F). It supports activities combating discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. Its priorities are: analysis and evaluation, developing the capacity to combat and prevent discrimination, and raising awareness.
In August 2003, the EIRO national centres in each EU Member State (plus Norway), were asked, in response to a questionnaire, to assess how the framework equal treatment Directive is being implemented in each country, and the responses of the state and social partners. The Austrian responses are set out below (along with the questions asked).
What was the legislative situation and the policy position of the state as at December 2000 (ie when the Directive was adopted) concerning employment discrimination in the areas of: age; disability; religion or belief; and sexual orientation?
At the time of the Directive's adoption, Austria had no specific legislation on age discrimination, and this is still the case. There is, however, a variety of legal regulations covering the employment and working conditions of older employees. The most important legislation in this area is the Works Constitution Act (Arbeitsverfassungsgesetz, ArbVG) and the Employment Contract Law Adaptation Act (Arbeitsvertragsrechts-Anpassungsgesetz, AVRAG). Both the ArbVG and the AVRAG provide for specific protection for older workers, in particular regarding (unjustified) dismissals, the latter being more detailed in its protective provisions. The AVRAG also contains regulations concerning reduced standard working hours for older workers, including the use of the 'partial pensions' scheme (Gleitpension) and the possibility of individual employer-employee agreements on 'normal' working time reductions (if the employee is older than 50).
Aside from this, a 'bonus-malus' system exists, whereby employers are exempted from their obligatory unemployment insurance contributions for recruits aged over 50, and are obliged to pay a levy when dismissing employees over the age of 50 (if they have been employed for at least 10 years). In order to favour the labour market participation of older people, the government introduced a scheme to facilitate part-time work for older employees (Altersteilzeit) in January 2000. The aim of this progressive retirement scheme is to keep older employees in the active labour force by offering them the opportunity to reduce their working time without substantial losses in income and social security (AT0110203F).
At the time of the Directive's adoption, Austria had no specific legislation on disability discrimination, and this is still the case. However, the 1969 Disabled Persons Employment Act (Behinderteneinstellungsgesetz, BEinstG) requires companies with at least 25 employees to hire a certain number of disabled people, related to the overall number of employees (AT9902130F). In principle, one disabled employee has to be employed for every 25 non-disabled workers. Some categories of employees with disabilities, such as blind people, are counted as two posts. Companies which refuse to hire disabled persons are obliged to pay a compensatory levy (Ausgleichstaxe) into a special fund (Ausgleichstaxenfonds) run by the Ministry for Economy and Labour Affairs. The levy amounted to about EUR 150 per unfilled post in 2000 and stands at EUR 200 in 2003. The fund is used to support both people with disabilities and companies employing or training them.
There is also relatively restrictive legislation regulating the dismissal of disabled employees. Such a dismissal is only valid if a special committee (Behindertenausschuss) established at the regional (Länder) level agrees to it after having consulted the company works council. Any dismissals without the consent of the committee (which takes into consideration matters such as the employment situation on the sector and the employee’s ability to fulfil their work duties) are unlawful.
Employers that place orders with special companies primarily employing disabled workers were, in 2000, entitled to claim reimbursement of 15% of the value of the order from the Ministry for Social Affairs. Such special companies (Integrationsbetriebe) employing a high proportion of disabled people were established to support the training and employment of disabled persons in order to reintegrate them into the 'regular' labour market. These companies are partially subsidised by the state, although they have to compete in the open market.
Religion or belief
At the time of the Directive's adoption, Austria had no specific legislation on discrimination on grounds of religion or belief, and this is still the case. A general protection against discrimination on the grounds of religion or belief is contained in the Austrian Constitution (Article 7) and international instruments ratified by Austria.
At the time of the Directive's adoption, Austria had no specific legislation on discrimination on grounds of sexual orientation, and this is still the case.
How has the state responded to the Directive since December 2000 in terms of:
- legislation concerning discrimination and draft legislation on the grounds of age, disability, religion or belief and sexual orientation (please specify details of title, date and main provisions and exclusions). With respect to age and disability, please specify if the state has opted to take the option of extending the deadline for implementation of the Directive and, if so, on what grounds;
- broader policy response, consistent with the Action Programme, for example: support for anti-discrimination activities; analysis of the extent and nature of the discrimination; arrangements for monitoring and enforcement; positive action; information and dissemination activities; and promotion of social dialogue and anti-discrimination collective agreements.
In order to adjust national legislation to the requirements of the framework equal treatment Directive, in July 2003 the Austrian government presented a draft amendment of the existing Act on Equal Treatment of Women and Men (Gleichbehandlungsgesetz, GBG). This will extend the law’s scope from gender to all aspects of discrimination covered by the equal treatment Directive and the Directive (2000/43/EC) implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (EU0006256F), except the area of disability (which will be regulated by separate law). Interestingly, the government is thus seeking to implement the two Directives by introducing a single law aimed at providing overall regulations for all groups concerned. The government’s plan to establish one piece of overall legislation for combating discrimination against a variety of different social groups, such as older people and gay people, is considered inappropriate by some experts and by opposition political parties, since the practices of discrimination against these groups differ widely. The overall provisions planned by the government will comply with the EU Directives only formally, critics argue. Since the planned law will apply only to employment relationships in the private sector, corresponding regulations will also have to be enacted for the public sector. However, so far, the authorities have not presented any draft legislation aimed at complying with the framework equal treatment Directive in the public sector. So far, the government has not indicated that it plans to take advantage of the option of extending the implementation deadline with regard to the Directive's age and disability provisions.
With regard to a broader policy response to the EU initiatives on anti-discrimination, this does not appear to have occurred.
Outside the direct area of legislation combating discrimination, there have been a number of developments since 2000 in the areas covered by the framework equal treatment Directive. On 11 June 2003, the government introduced a series of legal measures (Budgetbegleitgesetz 2003) aimed at supporting the labour market opportunities of older employees. These include a notable reduction in non-wage labour costs for employers employing people aged over 56 (women) and 58 (men), plus further reductions in respect of employees aged over 60. Moreover, it is planned that separate 'active' labour market policy funds will be made available for the training of older employees in precarious employment situations. According to the new legislation, all unemployed workers aged over 50 now have a legal entitlement to qualification and training programmes if no appropriate job has been offered to them within three months. In order to create incentives for employers to recruit additional older employees, the part-time scheme for older employees (see above) has been amended so that certain arrangements of flexible distribution of work over the period of part-time employment, as well as subsidies fully compensating for the employer’s surplus social insurance contributions (for their part-time workers), are linked to the engagement of additional older employees (AT0209202F).
As regards the employment of people with disabilities, the government has pursued a strategy since 2000 which is regarded in some quarters as inconsistent. On the one hand, there have been cuts in social welfare schemes for disabled persons (such as the introduction of taxation on accident benefits in 2000) and the termination of several promotion measures to support the employment of disabled persons (such as the abolition in 2003 of the 15% reimbursement for companies placing orders with special integration companies - see above). On the other hand, in 2001 the government introduced an employment programme for people with disabilities (known as Behindertenmilliarde) by additionally financing special training programmes and other specific measures, such as integration assistance for companies that hire disabled people, and assistance for disabled people in order to enhance their access to information and communication technologies (AT0101238N). Furthermore, the government has announced an amendment in autumn 2003 of the Vocational Training Act (Berufsausbildungsgesetz, BAG) which will give disabled apprentices’ the opportunity either to extend the period of apprenticeship by up to two years or to receive training only in a certain section of an occupation (cumulating in a final examination for this section of the recognised apprenticed occupation). Thus, young people with disabilities will be eligible to enter (special sections of) apprenticeship-based occupations.
Social partner response
What have been the views and policy response of the social partners to (a) the Directive and (b) its transposition into national law? How has social dialogue proceeded on the issues covered by the Directive? Have there been any collective agreements on the issues covered by the Directive since December 2000 in terms of age, disability, religion or belief, or sexual orientation (please give examples, including reasons and bases for introduction)?
In Austria, the social partners are traditionally strongly embedded in policy-making procedures related to industrial relations and employment, and almost all the legislative amendments outlined above were developed in cooperation with them. However, the draft amendment of the Act on Equal Treatment of Women and Men aimed at implementing the EU framework equal treatment Directive was drawn up exclusively by officials at the Ministry of Economy and Labour Affairs, and the social partners’ influence on it seems to have been limited. So far, the social partners have not responded to the proposals.
The prevention of discrimination in the areas covered by the Directive is not subject to collective bargaining.
What has been the impact of any initiatives in your country in the areas covered by the Directive? Are there monitoring arrangements in place, and if so, what experiences do they report in response to the Directive?
There is a wide range of non-governmental organisations (NGOs) representing the people concerned by the Directive. Although most of these organisations have demanded the Directive’s strict transposition into national law and made detailed propositions for its implementation, they generally feel that they have been disregarded by the government, since only a few of their demands are reflected in the draft amendment to the Act on Equal Treatment of Women and Men. Most of the NGOs concerned consider the draft amendment inappropriate, in particular in terms of: the plans for only limited 'class action' (Verbandsklage) provisions in discrimination cases; the status and composition of the planned Equal Treatment Commission; the burden of proof provisions; and the absence to date of any rules on protection against discrimination in the realm of central state and Länder employment. (Georg Adam, University of Vienna)