Government plans to abolish permanent tenure for civil servants

In December 2005, Austria's conservative-populist government announced plans to abolish the permanent tenure of appointment that applies to public employees, and thus their absolute protection against dismissal. The proposals would establish in the civil service a single category of public employee, employed on a private-law basis with uniform service regulations. A draft bill on the issue should be presented early in 2006. Trade unions are strongly opposed, raising questions about the quality of public services and the constitutionality of uniform service regulations, as well as expressing concern about the future independence from political interference of civil servants, especially judges.

At the beginning of December 2005, state secretary Alfred Finz of the conservative People’s Party (Österreichische Volkspartei, ÖVP) announced the government’s willingness to abolish the traditional public employment relationship of career public servants (Beamte). According to Mr Finz, the government plans to present a draft bill for a Federal Public Employees Act (Bundesmitarbeitergesetz) early in 2006. This draft will provide for only a single, uniform type of employment relationship between public employees and their employer. Thus, the current two-tier system in the civil service, which is based on a differentiation between career public servants and 'contract public employees' (Vertragsbedienstete) would be abolished (see below).

This initiative appears to have been launched in response to prevailing public opinion, which deems civil servants in general and career public servants in particular as unduly privileged compared with private sector employees, and regards many aspects of their relative favourable service regulations as obsolete. Moreover, the junior partner in the conservative-populist coalition government has repeatedly urged the ÖVP to limit public employees’ wide-ranging protection against dismissal. (In this context it should be noted that the former junior partner in the coalition government, the populist Freedom Party [Freiheitliche Partei Österreichs, FPÖ], was replaced by the Alliance for the Future of Austria [Bündnis Zukunft Österreich, BZÖ], a new political party which was founded by Jörg Haider and some other members of the FPÖ after they left the latter in April 2005. This change of the junior coalition partner was possible because Mr Haider managed to take all FPÖ ministers and most of the 18 parliamentary deputies with him into the new Alliance and thus kept Chancellor Wolfgang Schüssel of the ÖVP in power. Most FPÖ grass-roots activists are sticking with the old party, even though it has no longer been represented in parliament since April 2005.)

Employment in the public service

The Austrian public service differentiates between two types of employment relationship between public employees and their public service employer: a public-law relationship that constitutes the status of the career public servant; and a private-law relationship applying to contract public employees. Both forms of employment relationship at federal government and regional government (Länder) level are regulated in detail by statute. Although the state is not obliged to assign 'sovereign functions' (hoheitliche Funktionen) exclusively to career public servants, they are usually performed by them, whereas their auxiliary staff are mostly contract public employees. It is an important feature of employment relationships in the public service that a career public servant is appointed and remains in the service of a public employer for his or her whole life. This is referred to as 'Pragmatisierung', ie a system of permanent tenure of appointment that provides absolute protection against dismissal. When they reach pensionable age, career public servants do not leave the public service but are transferred into a 'retirement relationship' (Ruhestand) and receive 'retirement pay' (Ruhegenuss). By contrast, contract public employees engaged under a private-law contract of employment may be dismissed under certain circumstances. On retirement, they receive pension benefits under the statutory scheme provided for under the General Social Insurance Act (Allgemeines Sozialversicherungsgesetz, ASVG) in a way analogous to private-sector employees (AT0204201F).

Government’s reform proposal

According to state secretary Finz, the government wants to propose a draft Federal Public Employees Act in January or spring 2006 at the latest. The aim is to abolish the public-law employment relationship as such and thus to terminate the legal status of career public servants. This would mean the end of the current differentiation between career public servants and contract public employees. Instead, a new, uniform category of 'public employee' would be introduced, with uniform service regulations for all of them, regardless of their area of activity. Essentially, this would also signify the abolition of permanent tenure and of the absolute protection against dismissal. For certain occupational groups seen as particularly meriting protection, such as judges, prosecutors, some executive (police) staff and financial officers, a tailor-made 'functional protection against dismissal' would be established: the more delicate a position, the more extensive would be the scope of this protection. Absolute protection against dismissal would probably be provided only for judges, while public employees in the administrative civil service would be treated as 'normal' employees. Any exemptions in terms of service regulations (including any protection against dismissal) for certain branches or occupations would be integrated into the new Federal Public Employees Act, which would thus replace the current broad range of different service regulations each applying to one of the various branches/occupations. However, the new regulations would apply only to newly engaged people, while the 'old' scheme would expire slowly (as current staff leave).

Unions’ response

Trade unions, in particular the Civil Service Trade Union (Gewerkschaft Öffentlicher Dienst, GÖD) (AT0005221F), are strongly opposed to the government’s reform proposals. Generally, GÖD has emphatically warned against 'economising' Austria’s public services, arguing that this would result in substantial losses in their quality - the most important prerequisite for common welfare and economic development. In particular, Fritz Neugebauer, the chair of GÖD, questions whether the introduction of only one uniform type of service regulations for the whole civil service is compatible with the Austrian Constitution. This position has been backed by the president of Austria’s Supreme Administrative Court (Verwaltungsgerichtshof, VwGH), Clemens Jabloner, who emphasised that service regulations in the civil service that are based exclusively on private-law employment contracts would be unconstitutional.

Union representatives of two particular occupational groups have made the fiercest protests against the governmental reform plans so far - judges and school teachers. In particular, the judges strongly oppose any attempts to abolish their current separate service regulations, which are based on the 1961 Judges Service Act (Richterdienstgesetz, RDG). This Act is perceived as a historical milestone in ensuring judges’ independence from political power, since it guarantees their freedom from political instructions and their protection against dismissal and removal. The Judges’ Association (Richtervereinigung) has announced that it will use 'all democratic means', including strike action, if the government further persists in its plans to amend the judges’ service regulations laid down in the RDG.

Commentary

In general, public employees enjoy greater protection against dismissal than private-sector employees. This may be questionable for some areas of the civil service, in particular that related to solely administrative tasks. On the other hand, in several branches of the public service absolute protection against dismissal has proved a central element in guaranteeing constitutionality. This holds true at least for the judicial and police institutions, and arguably to some extent also for school and university staff as well as 'exposed' officers of financial authorities. This argument has been put forward by the unions and the political parties of the parliamentary opposition, which have warned of the danger of political interference as a result of 'streamlining' public employment relationships.

One may arguably consider the model of 'Pragmatisierung' as inappropriate and obsolete in terms of modern administration. However, it appears to be questionable whether the establishment of one single, uniform type of service regulations for all groups of civil servants, as favoured by the government, is congruent with the Austrian Constitution, since the latter contains clear provisions on the appointment procedures and employment conditions of such groups as judges. Since any substantial amendment to public service regulations is subject to a majority of two-thirds of votes in parliament (a quorum which is currently out of reach for the coalition government), such a thorough reform is unlikely to be realised in the near future. (Georg Adam, University of Vienna)

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