- Observatory: EurWORK
- Industrial action,
- Labour and social regulation,
- Industrial relations,
- Published on: 09 February 2010
Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.
Formally recognised alternative dispute resolution (ADR) practices are rare in Austria. They can be found either in the context of company-level co-determination (by way of a works agreement) or in very specific employment relationships and situations. In contrast, informal ADR is used frequently, in that organised labour attempts to intevene in cases of individual employment disputes by contacting the employer in order to settle a conflict out of court. Such intervention practices seem to be quite successful. In general, statistics about the use of either formal or informal ADR methods are not available.
It is thought that the number of employees registering a complaint about their treatment at work is growing, but we need more evidence of this. The central question to be covered by this CAR is how these complaints are dealt with outside, and usually before, an application to a labour court or tribunal but which still provide the aggrieved worker with some avenue of redress, or a least a means for having the complaint heard. This is usually referred to as Alternative Dispute Resolution (ADR).
ADR normally uses well known processes of conflict resolution in collective labour disputes, such as conciliation, mediation and arbitration, but applies these to individual workers’ complaints. ADR may be an alternative to litigation through the courts or it can also be a consensual approach to the resolution of individual conflicts in the workplace used by the courts or an agent appointed by the court. ADR has a number of variants. It is usual for an independent person to be involved as a third party. This can sometimes be someone from inside the employing company or organisation but more usually involves someone from outside who is an independent person.
The main types of ADR are as follows:
- Conciliation: Here the third party who acts only as a facilitator by maintaining the two way flow of information between the conflicting parties and encouraging a rapprochement between their antagonistic positions. This is where the third party listens to each side, usually in person, but it can be done by phone, and seeks to find an acceptable solution, which can be compensation or alternatively, measures taken in the workplace. The conciliator does not make a judgement nor suggest a solution but works with the applicant and the employer to find an acceptable outcome. In some countries the law requires that before the matter can be heard in a labour court or tribunal the applicant must use the services of a conciliator. If agreement is reached it would be normal for the case to be withdrawn from the tribunal and registered as ‘settled’;
- Mediation: This is where an impartial third party, the mediator, helps two or more people in dispute to attempt to reach an agreement. Mediation is based on the principle of collaborative problem-solving with the focus on the future and rebuilding relationships, rather then apportioning blame. Sometimes a mediator may suggest a possible solution to the conflict, as they do in collective labour disputes. Another type of mediation is where the mediator guides the parties toward finding their own solution by getting them to explore different and new ways of thinking and acting. This approach has its origins in family mediation, and;
- Arbitration:This is where the third party hears the case presented by each person and makes a ruling on the outcome;
- Other ADR innovations: There can be other types of ADR such as the appointment of a third party as a ‘fact-finder’ who reports to the parties on the issues leaving them to find their own solutions. This can sometimes be used in disciplinary cases.
This EIRO CAR will focus on how far, if at all, the use of these various forms of ADR (and there may be other variants) is growing, how they operate in different EU countries, how they are viewed by the social partners, and the impact of ADR on employment relations. (An earlier EIRO ‘thematic feature’ exercise in 2004 looked at individual labour/employment disputes and the courts and EIRO national centres in 24 countries produced national reports. These were published online at /ef/search/node/eiro OR thematicfeature7?oldIndex). The following questions should enable us to construct a comprehensive picture of practice and trends in ADR across the EU member states. We are essentially looking for evidence and explanation of the uptake of ADR, and details of how it operates.
(A) Recent trends (2005-2009)
1. What traditional or established methods are used in your country to seek to resolve individual disputes (e.g. labour courts/tribunals)? What ADR methods are now used as alternative or additional means to resolve individual conflicts?
Please give a brief description of the legal mechanisms before reporting on the use of the various forms of ADR used.
Please explain if ADR is voluntary or compulsory. Please distinguish between conciliation, mediation, arbitration and any other types of ADR.
In Austria, individual labour law and employment disputes dealt with through jurisdiction fall within the purview of ordinary courts. The competent courts of first instance are the Land Courts (Landesgerichte) domiciled in each of the provinces (Länder). Each of them acts as a labour and social security court (Arbeits- und Sozialgericht) along with their other areas of jurisdiction (with the sole exception of Vienna, which has a special labour and social security court). The courts of second instance are the four Higher Land Courts (Oberlandesgerichte), and the third and final instance is the Supreme Court of Justice (Oberster Gerichtshof, OGH). The labour and social security courts are competent to rule on all disputes arising from labour law – including disputes over employment contracts, pay, working conditions, any form of discrimination, unfair dismissal, surveillance etc – and all benefit claims arising from social security law. However, it is important to note that individual disputes may be taken to court only if they arise from private-law employment relationships. In line with this, all employees (except for career public servants who enjoy a permanent tenure which carries absolute protection against dismissal) are entitled to bring such cases. Representatives of both trade unions and Chambers of Labour (and at the first-instance level, also members of a works council) may bring a case on an employee’s behalf – though only with the employee’s consent (AT0403203T).
Compared with these established jurisdictional mechanisms in a narrow sense, alternative dispute resolution (ADR) methods do not figure prominently in the country’s legal system of individual dispute resolution. To a certain extent, this may be due to the country’s pronouncedly ‘corportatist’ industrial relations structure. On the employees’ side, this corporatism is manifested in the fact that workers’ interests are represented by two types of interest organisation simultaneously, i.e. the trade unions on the one hand and the Chamber of Labour (Arbeiterkammer, AK) on the other hand. In the case of an individual labour/employment dispute, the employee concerned will – in particular if a works council is absent in the employer company – normally contact either the relevant trade union (in the case of membership) or the AK (membership of which is compulsory for all private-sector employees) for obtaining information, advice and – possibly – assistance in legal procedures. In particular, the latter organisation is specialised in providing such individual advice and assistance, with hundreds of thousand contacts with employees seeking legal advice in all fields related to labour law annually. Actually, in most cases of individual employment dispute, either the AK or the trade unions try to intervene (by contacting the employer) in order to bypass formal litigation before the courts. According to AK records, in most cases of such informal intervention a settlement out of court can be reached when organised labour (the AK or a union) has managed to confer with the employer. One could arguably classify such informal intervention launched by organised labour on behalf of an employee as de facto ADR method, although it is not an impartial, third party that intervenes and although these practices are not reflected by statute law. Thus, when taking these informal practices of intervention (which can take the form of both conciliation and mediation) adopted by organised labour into account, one can assess that ADR methods do play an important role in Austria’s system of individual dispute resolution.
Apart from these informal dispute resolution practices, formalised ADR procedures are provided by either statute law or binding agreement in the following situations:
- in the framework of company-level co-determination, the management and the works council frequently (in particular in larger companies) conclude a works agreement (Betriebsvereinbarung) which may provide for institutionalised procedures of conflict resolution. Such works agreements may also stipulate that in certain situations (e.g. monitoring measures to be implemented by management, personality assessment procedures, workplace design, positive action for women, action in relation to work-life-balance, performance-related pay and transfer of personnel etc.) a third party may be called in for consultation, conciliation and mediation purposes. Sometimes, specific bi-partite committees are set up where a third party is invited to act as a kind of conciliator or mediator. In such cases, ADR methods are institutionalised by voluntary agreement of the two sides of industry at indivicual company level.
- in the event of discrimination of employees on the ground of disability, legislation provides for a conciliation procedure out of court. The procedure will be triggered when the employee discriminated against files an application for conciliation with the Federal Social Welfare Office (Bundessozialamt, BSA). On request of at least one of the conflicting parties, also mediation can be used. If conciliation/mediation fails to reach a settlement, claims resulting from discrimination can be stated in court.
- in the case of an employer willing to unilaterally and early terminate an existing apprenticeship, he/she is obliged to initiate a mediation procedure, if no solid ground for dismissal according to law is given. The procedure provides that the employer has to send written notice of his/her intention to both a special apprenticeship unit (Lehrlingsstelle) of the Federal Austrian Economic Chamber (Wirtschaftskammer Österreich, WKÖ) and the works council and/or young workers’ council (Jugendvertrauensrat). The WKÖ unit, for its part, has to inform the AK within a certain time period. Subsequently, the employer planning to terminate the apprenticeship before the entire vocational training period has been elapsed has to propose a mediator and – in case of refusal by the apprentice – two additional mediators, one of whom the apprentice eventually has to accept. The result of the mediation procedure may be the continuation of the apprenticeship or its early termination by way of unilateral decision or mutual agreement.
- moreover, in the event of conflicts ensuing from an apprenticeship the parties to collective agreements may – within their realm – set up special arbitration boards, in order to rule on cases where the conflicting parties have failed to reach a settlement.
Apart from the areas outlined above, no ADR methods or procedures have been reported on by the social partners. However, there are also situations where the ordinary courts act as mediators in that they arrange mutual agreements concluded by the conflicting parties. However, no information on the frequency of such ‘arrangements mediated by the courts’ (Vergleich) in the field of individual employment disputes are available. In cases of discrimination against employees on grounds of other than disability complaints can be brought either to the courts or to the Equal Opportunities Commission (Gleichbehandlungskommission, GBK), which is an administrative body of the Federal Chancellery. However, since the GBK’s task is to assess whether discriminating practices have occurred (which may serve as a basic finding for the subsequent courts’ rulings) rather than dispute resolution, GBK activities are not taken into account in this report.
2. Over the last five years, i.e. since the beginning of 2005, have there been any changes in your country in the volume of cases dealt with by ADR and in the proportion of individual disputes dealt with by ADR?
(i.e. in relation to the total number of individual disputes lodged with tribunals/labour courts)
Please distinguish between the different types of ADR and, wherever possible, please provide statistical evidence for each year.
What can be said is that the number of AK consultations by employees seeking for advice regarding labour law has continuously increased over the past five years. However, no further information on the number of ADR cases is available.
3. What are the main categories of individual workplace disputes dealt with by each type of ADR?
(e.g. disciplinary issues, employee grievances, harassment, bullying, discrimination on grounds of gender, ethnicity, religious belief, sexual orientation, pay, employment rights etc)
Are some issues more amendable to ADR than others? For example, it has been suggested that mediation may be best suited for disputes concerned with bullying, harassment and worker-worker problems.
Please see section (A)1 above. No further information is available.
4. Does the use of ADR vary by industry sector and by occupational characteristics?
(e.g. public, private and voluntary sectors; professional, white collar, manual workers)
No information available.
5. What impact is the recession having on the number or volume of individual disputes and on the use of ADR?
No obvious impact has been observed.
(B) Actors and processes
6. How does the aggrieved worker get access to ADR?
Is it via a trade union; on applying to a tribunal or labour court; through the employer; or some other way?
That depends on the matter dealt with. Almost all informal ADR practices are channelled through the AK and the trade unions (on the individual employee’s request). With regard to formal ADR methods, please see section (A)1.
Is the worker required to have sought to resolve the matter by using the internal company grievance and disputes procedures first?
No. However, if such company grievance and disputes procedures exist (in the form of a works agreement), the works council will first try to employ these procedures on behalf of the aggrieved employee to resolve the matter before applying to the courts.
Is ADR free of cost for the employee applicant? Does the employer have to pay for ADR services?
Both informal and formal ADR practices are free of cost for the employees affected. Expenditures for mediation in relation to the early termination of an apprenticeship sought by the employer have to be borne by the latter. Likewise, ADR procedures laid down in a works agreement are usually funded by the employer. Costs for special arbitration boards set up by the relevant parties to collective agreements have to be taken over by the responsible social partner organisations. In the context of a conciliation/mediation procedure managed by the BSA (dealing with discrimination on the ground of disability), all costs are borne by this authority.
7. Where do independent experts in conciliation, mediation and arbitration come from?
Who appoints them and are they required to be trained?
Who appoints independent experts depends on the matter dealt with (see above). Mediation is a profession in Austria, which means that a mediator has to prove evidence of having passed mediation training before officially being listed as mediator and being entitled to practice this profession. For conciliation and arbitration purposes, the instances setting up ADR practices determine the criteria for selecting the experts. Usually, such experts are lawyers/judges and social partner representatives.
Who pays them? This could be the government/state, a specialist government agency, the employer or employers’ association, a trade union or other bodies.
Please see above.
8. Is there any formal link between ADR and a labour court or a tribunal?
Does the worker have to have applied to the labour court/tribunal first before ADR can be used?
If ADR is used and is successful, must the claim be withdrawn from the tribunal?
Not in all instances.
Can the independent expert providing ADR subsequently be required to give evidence in the labour court/tribunal hearing?
9. Is the worker using ADR usually accompanied by someone at the hearing?
If so, by who (e.g. a fellow worker, a trade union official, a lawyer etc)?
Depending on the type of ADR, the worker using ADR may be accompanied by a works council member, a trade union or AK official and – in the case of young apprentices – a young workers’ council member or the parents.
(C) Views of governments and social partners
10. What are the attitudes of the government and social partners (employers/employers’ associations and trade unions) to the use of ADR techniques?
Do they encourage or discourage the use of ADR, or remain neutral or indifferent?
Austria does not record a long and notable tradition of formally recognised ADR techniques in the field of industrial relations. Likewise, the governments have never put much emphasis on the development and extension of ADR practices to resolve employment disputes. This task has been attributed to the realm of the labour and social courts, which, in turn, have the possibility to settle a labour conflict by way of an ‘arrangement mediated by the courts’ (Vergleich), whereby the two parties agree upon resolving the dispute during the course of the normal litigation procedure. The reason for the government’s reservation with regard to formally recognised ADR methods can be found in the fact that, in particular, organised business has shown no interest in extending formalised ADR methods and procedures. This is because these procedures, as additional instances in relation to the courts, have been regarded as time- and resource-wasting, particularly against the background that they are not necessarily legally binding and thus contestable. For their part, both the AK and the trade unions have developed a double strategy for interest representation in the event of individual disputes. On the one hand, AK and trade unions have their own departments specialised in providing legal protection for their members. These departments are equipped with both resources and expertise to bring cases on behalf of their members to the court, which is most significant for the employees since it is too risky and costly for them to bring a case to court by themselves (or by way of a lawyer). On the other hand, organised labour has been very successful in informally intervening (by contacting the employer) in order to avert formal litigation before the courts. Therefore, also organised labour does not see an urgent necessity to expand the country’s ADR system – though both AK and trade unions would approve of such an initiative.
Have these attitudes changed in the last five years and if so why?
No evidence in this respect could be found.
Have any agreements been reached by the social partners on the use of ADR in the workplace.
Yes, in the form of works agreements at company level (see section A.1). In former times (up to the mid-1990s), some collective agreements contained provisions on ADR methods. For instance, the agreement for white-collar insurance workers stipulated that a special commission for the protection against dismissal had to be consulted prior to dismissals. However, the OGH ruled in 1993 that such collectively agreed provisions would be in breach of the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG) and thus null and void. Therefore, since about 15 years, collective agreements (in contrast to works agreements) have been no means of providing ADR schemes.
(D) Commentary by national centre
11. Please provide a short commentary on the significance of ADR in your country and debates about its impact (or potential impact) on employment relations.
Whereas informal ADR is performed extensively between organised labour (on behalf of the individual employee) and the individual company, explicit and formalised ADR practices in the area of industrial relations are rare in Austria. Such formalised methods of ADR are used either in the context of company-level co-determination (and usually take the form of a works agreement) or in very specific employment relationships and situations (e.g. apprenticeships or in the event of discrimination on the ground of disability). Though the latter forms of ADR cover only a few hundreds of employees annually and thus are almost insignificant in relation to the vast majority of the country’s workforce, the results of conciliation and mediation where they were used appear to be promising. For instance, of 146 cases of employers planning to early terminate the apprenticeship in the time period 1 January to 30 September 2009, in 34 and 36 cases a mutually agreed contract termination and an abandonment of termination by the employer, respectively, could be reached by way of compulsory ADR. Such findings would suggest extending ADR methods to other areas of employment relationships and situations of dispute. However, neither the social partners nor the government have started an initiative in this respect. This is mainly due to the country’s traditional court-based system of conflict resolution on the one hand and the relative strength of corporatism in Austria on the other. The latter fact means that, on the labour side, the representative organisations are – apart from the provision of effective legal protection for their members – also capable of effective informal intervention with the employers. Such informal conflict resolution mechanisms may partially render official ADR methods redundant. Nevertheless, experts claim that a wider use of ADR methods would not only relieve the ordinary courts and thus accelerate the entire litigation process. It would probably also help avoid a number of conflict situations, as experience with – for instance – occupational social work (which is virtually non-existent in Austria) in countries such as Germany and the Netherlands indicates.
Georg Adam, Department of Industrial Sociology, University of Vienna