Austria under fire over discrimination against non-EEA workers

Austrian labour legislation denies foreign national from outside the European Economic Area (EEA) the right to stand in elections to works councils. This arrangement - unique among EEA countries - is perceived as discriminatory, not only by non-EEA citizens working in Austria, but also by some representatives of organised labour and, not least, by the European Commission. In 2002, the issue has been further highlighted by the United Nations Human Rights Committee, which has condemned the Austrian rules in this area in its views on a case brought by a Turkish national, whose election as a works council member was overturned by the Austrian courts.

On 4 April 2002, the United Nations Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights, issued a set of 'views', finding that Austria's discrimination against foreign workers from outside the European Economic Area (EEA) with regard to co-determination under the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG) is in breach of Article 26 of the Covenant, which requires equality before the law and the prohibition of discrimination on any grounds. The Committee also called on the Austrian government to inform it of measures taken to implement its views. The Committee's statement (on Communication No.965/2000)was the latest latest development in a long-running case brought by a Turkish national who was was elected as a works council member in Austria in 1994 and then deprived of this status by the Austrian courts. The Committee's ruling was highlighted in Austria, at a press conference held on 16 July 2002, by Hans Sallmutter, the chair of the Union of Salaried Employees (Gewerkschaft der Privatangestellten, GPA).

The current legislation

Austria is the only member state of the EEA which links the right to stand for works councils elections to citizenship (AT9703104F), which it has done since the beginning of the 1970s. Through an amendment to the ArbVG in 1993, in response to the preparations for Austria's accession to the EU, citizens of other EEA countries were entitled to become works council members alongside Austrian nationals. Foreign workers from other EEA countries, however, comprise only about 8% of all immigrant workers in Austria. According to §53 of the ArbVG, all employees who are nationals of countries outside the EEA (of whom there are about 260,000) remain excluded from membership of this employee representative body.

Some Austrian trade unions and academic experts have argued repeatedly for some years that this discrimination is inconsistent with EU law. According to agreements which form part of EU legislation, citizens of Turkey, the Maghreb countries of Northern Africa and some central and eastern European countries must be treated equally with EU and EEA citizens in all labour relations matters, including eligibility to stand in works council elections. With Austria's accession to the EU, these agreements became constituent parts of the Austrian legal system.

Furthermore, the Austrian Constitution bans any kind of discrimination, stipulating that all citizens are equal before the law and that privileges on the grounds of descent, race, sex, status, class, and beliefs are prohibited. This implies that preferential and prejudicial treatment by the legislator is also forbidden with regard to working life. Hence, the differentiation (in terms of labour relations) between a group of foreign workers privileged by EU law and other foreign workers seems to be questionable. Thus, some experts in labour law argue that all workers legally employed in Austria are eligible to stand in works council elections, regardless of their nationality.

The view of the European Commission

The abovementioned problems of inconsistency with the EU legislation have led the European Commission to respond on several occasions. In 1997, the Commission officially declared that the eligibility of non-EEA foreign workers to stand for election on statutory representational bodies in the industrial relations field had to be ensured by Austrian legislation. In response, the Republic of Austria announced that it would prepare amendments of both the ArbVG and the Chamber of Labour Act (Arbeiterkammergesetz, AKG), which excludes non-EEA foreign workers from eligibility to stand for election to Chambers of Labour (the bodies which represent employees in Austria's system of 'social partnership'- AT0004218F). However, since the subsequent 1998 amendment to the AKG retained a nationality criterion for eligibility, and the ArbVG was not amended at all, the Commission again, in October 1998, called on the Austrian government to adjust its national legislation. In July 1999, the Commission officially launched infringement proceedings against Austria on grounds of breach of EU treaties, which could lead to a case before the European Court of Justice (ECJ). These proceedings have continued since.

Austrian views

Demands to make all employees - regardless of their nationality - eligible for membership of statutory employee representative bodies did not emerge until the 1980s, when such calls were launched, in particular by experts at the Federal Chamber of Labour (Arbeiterkammer, AK), some academic experts and - in the late 1980s - the then minister for social affairs, Alfred Dallinger. However, the social partners, which have traditionally played an important role in Austria's post-war immigration policy, did not take up this initiative. However, since the 1990s, when the 'integration' of foreign nationals has become a key issue in Austria's migration policy, the number of proponents has grown and now includes the Hotel, Restaurant and Personal Services Trade Union (Gewerkschaft Hotel, Gastgewerbe, Persönlicher Dienst, HGPD), the organisations for women and young people within the Austrian Trade Union Federation (Österreichischer Gewerkschaftsbund, ÖGB) and bodies such as the migrants' organisation 'Sesam öffne dich!'.

Although ÖGB itself decided to support the eligibility of foreign workers to stand in workplace elections in 1991 and reaffirmed this demand four years later at its general assembly (Bundeskongress), these declarations have not led to notable political initiatives. In 1993, when the ArbVG was amended, mainly due to EU law, and in 1998, when a government draft proposed making non-EEA foreign workers eligible to stand in elections to the Chambers of Labour (AT9802168N), ÖGB each time failed to achieve non-discriminatory rules that would have conformed with EU law, since the 1998 proposal was eventually blocked by the conservative People's Party (Österreichische Volkspartei, ÖVP) (AT9804181N).

This reflects the positions of the principal political parties in Austria. The Social Democratic Party (Sozialdemokratische Partei Österreichs, SPÖ), when it was in office, tried to alter the discriminatory provisions, although this issue was not among its top priorities. Hence, initiatives in this area could be blocked by its coalition partner, the ÖVP. The current coalition government of the ÖVP and the populist Freedom Party (Freiheitliche Partei Österreichs, FPÖ) has repeatedly indicated that prefers to await a decision from the ECJ rather than reform the laws in question.

Commentary

The principle of equality before the law figures prominently in the Austrian constitution. Nevertheless, the provisions restricting eligibility to stand for election to statutory employee representative bodies (ie works councils and Chambers of Labour) have survived so far, although they seem to conflict with this principle and to be inconsistent with EU law. This is because none of the principal political parties has prioritised their amendment. The most plausible explanation is that each of these parties has a parallel trade union faction which runs candidates in the elections to these bodies. Since it is unclear how the extension of eligibility to new employee groups will affect the electoral results, the parties rather hesitate to amend the provisions. As a consequence, the final decision on this matter will probably be taken by the ECJ. (Georg Adam, University of Vienna)

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