Amended equal treatment act will ensure better compensation

In late December 2007, the Austrian government agreed on a draft amendment to the Equal Treatment for Men and Women Act, which aims to improve compensation for employees that have been discriminated against on the grounds of their gender. While trade unions are mostly satisfied with the draft amendment, the Green Party deems this initiative as insufficient.

On 19 December 2007, the parties forming the current so-called grand coalition government – the Social Democratic Party (Sozialdemokratische Partei Österreichs, SPÖ) and the People’s Party (Österreichische Volkspartei, ÖVP) – agreed, after difficult and intense negotiations lasting over several weeks, on a draft amendment to the Equal Treatment for Men and Women Act (Gleichbehandlungsgesetz, GBG (in German)) (AT0103209F). According to the State Secretary for Labour Affairs, Christine Marek of the conservative Austrian People’s Party (Österreichische Volkspartei, ÖVP), the amendment will bring about numerous improvements for victims of workplace discrimination on the grounds of their gender. This initiative is designed to introduce the provisions of the European Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services.

Equal treatment legislation

The GBG was introduced in 1979 and contains a special obligation to apply the principle of equal treatment for men and women at work (Gleichbehandlungsgebot). According to Article 2(1) of the act, it prohibits any discrimination against an individual:

No one shall suffer discrimination on grounds of gender in connection with an employment relationship, either directly or indirectly, in particular as regards the formation of an employment relationship, the determination of pay, the award of discretionary company benefits, training and further training, promotion and the termination of the employment relationship.

The act also defines a certain set of penalties in the event of infringements by employers. The provisions of the act only apply to companies in the private sector, while the public sector is covered by a special anti-discrimination legislation.

New GBG provisions

The GBG in its current form has been perceived as insufficient to curb and compensate for cases of sexual harassment mostly brought forward by women. The current regulation provides that people who have been dismissed from work after submitting a complaint about gender-related discrimination are only entitled to fight for their re-employment before the courts. This regulation, however, is not acceptable for many women who have experienced sexual harassment at their workplace, since a continuation of their employment relationship at the same workplace with the same colleagues and employer is no longer an ideal situation for them.

The draft amendment to the GBG now provides for an alternative approach, in that illegally dismissed victims of gender-related discrimination at the workplace may opt for financial compensation for both the loss of income and psychological harassment suffered instead of returning to their job in the same workplace. The period for legally filing a law suit against the employer for the purpose of re-employment currently stands at two weeks, while the period for legally suing the employer for damages has been fixed at six months following dismissal. The level of the compensation payment is to be determined by the courts. A minimum rate of compensation equivalent to a total of six months of pay, as proposed by the trade unions, has not been adopted in the draft amendment to the GBG.

Moreover, the draft act provides for higher financial compensation for women who have not been employed just on the grounds of gender, amounting to a sum of two months’ pay instead of the current amount of only one month’s pay. Likewise, minimum compensatory fines are set to be increased in cases of any kind of discrimination – such as on the grounds of gender, religion, ethnic origin, age or sexual orientation – associated with the denial of an employment relationship.

For employees who have been disparaged or derided on grounds of religion, ethnic origin, age or sexual orientation, minimum compensatory fines will be adjusted to those of victims of sexual harassment (AT0501202F) and thus raised from the currently amount of €400 to €720. The defined period for taking legal action against the employer in the case of any harassment will be extended to one year. In the event of multiple complaints of discrimination, such as on the grounds of gender and ethnic origin, each case of discrimination will be treated separately by the courts, so that the penalties imposed for each infringement can be combined.

Mixed reactions to draft act

The presentation of this draft amendment to the GBG by the coalition government has received a mixed response. The trade unions and the Chamber of Labour (Arbeiterkammer, AK) have largely welcomed the new provisions and questioned a few details only, such as the lack of a set minimum amount of compensation for illegally fired victims of sexual harassment. The Green Party (Die Grünen, GRÜNE) is also satisfied with the improvements of the GBG envisaged by the government. However, it strongly criticises that the focus of the government’s legal initiative lies on working life only, while gender-related discrimination in the areas of education, media and advertising will remain unpunished. Furthermore, the party’s spokesperson for women’s affairs, Brigid Weinzinger, calls for the extension of the GBG’s scope, allowing for the provision of some form of legal protection of women against unequal treatment in terms of pay and career opportunities. To date, the country’s business organisations have not issued an official statement on the draft act.

The amendment is planned to take effect on 1 April 2008, after its endorsement by the Austrian parliament.

Georg Adam, Department of Industrial Sociology, University of Vienna

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