Implementation of the Transparency Directive in Austria / Part 1

The Transparency Directive was to be implemented into Austrian national law by 1.8.2022; prior to the current amendment, the Transparency Directive was already implemented for the public sector at federal level in 2022. In Germany, an amendment to the Evidence Act came into force on August 1, 2022 in implementation of the Transparency Directive, with implementation differing in many respects compared to Austria.

What are the main objectives of the Transparency Directive?

The Directive (EU) 2019/1152 of the European Parliament and of the Council of 20.6.2019 on transparent and predictable working conditions in the European Union aims in particular to regulate atypical and precarious forms of employment, such as on-demand work or so-called zero-hour contracts, and to prevent abuse. Contracts under which employers have the flexibility to ask employees to work as needed are particularly unpredictable for them under the Directive. Member States in which such contracts are permitted must therefore ensure that effective measures are in place to prevent abuse of these contracts. Forms of work without specific minimum content should be prevented. It should be noted here that certain forms of work, such as the conclusion of so-called zero-hour contracts, are not permitted due to the existing legal situation in Austria.

Accordingly, the Transparency Directive sets out minimum entitlements and the associated obligation of employers to provide employees with information in accordance with the Directive.

Extension of the minimum content for notices of employment

Pursuant to Section 2 of the Employment Contract Law Adaptation Act („AVRAG“), the employer must provide the employee with a written notice of the rights and obligations arising from the employment contract (notice of employment) immediately after the start of the employment relationship.

The employee must be informed in writing of any changes to the rights and obligations set out in the notice of employment without delay, at the latest on the day on which they come into effect. This information may be omitted if the changes are made by law or collective agreement or directly affect the basic salary or the basic wage (with the exception of changes resulting from a change of job group, for example).

As a declaration of circumstances, the notice of employment serves to document the agreed contractual conditions. An employment contract that includes the minimum contents of the notice of employment replaces it.

Minimum contents of the notice of employment (previously and including the additional contents in accordance with the amendment to the AVRAG as of 28.3.2024, marked “NEW”):

• Name and address of the employer
• Name and address of the employee
• Start of the employment relationship
• For fixed-term employment relationships: end of the employment relationship
• Duration of the notice period, date of termination, NEW: reference to the termination procedure to be followed (note: the law does not contain any precise information on the level of detail to be provided on the applicable termination procedure, but there is a reference option, see below)
• Usual place of work, if necessary reference to changing places of work, NEW: seat of the company
• Classification in a general scheme if any
• Intended function, NEW: brief description of the work to be performed (note: simply stating the function/job title is no longer sufficient)
• Amount of the base salary or wage, other parts of the remuneration, such as special payments, NEW: if applicable, remuneration for overtime, due date and kind of payment of remuneration
• Extent of annual vacation
• Agreed daily or weekly normal working time of the employee, NEW: if applicable, information on the conditions for changing shift schedules (note: the law does not contain any precise information on the level of detail to be given to shift schedules and their possible changes, but there is a reference option, see below)
• Identification of any collective bargaining standards applicable to the employment contract and reference to the room in the company where these are available
• NEW: Name and address of the social insurance institution and company pension fund or, for employees subject to the Construction Workers’ Leave and Severance Pay Act, name and address of the construction workers’ leave and severance fund
• NEW: Duration and conditions of an agreed probationary period
• NEW: if applicable, the entitlement to training provided by the employer

Certain information, including the information now to be contained on the termination procedure to be observed, the remuneration of overtime and, if applicable, information on shift schedules, can also be provided by reference to the provisions applicable to the employment relationship in laws or in collective agreements or in travel guidelines applied in the company. If, for example, there is special protection under the Disability Employment Act („BEinstG“), reference must be made in the notice of employment (or employment contract) to the termination procedure to be observed under this law.

Notice of employment in physical form?

Until now, the notice of employment had to be issued and handed out in written form. NEW since 28.3.2024 is that the notice of employment can alternatively be submitted in electronic form at the employee’s discretion.

Legal consequences in the event of a breach of the duty to provide a notice of employment

NEW compared to the previous legal situation is that administrative penalties of between EUR 100 and 436 may be imposed if the obligation to submit a notice of employment is violated. If more than five employees are affected, the penalty range increases to between EUR 500 and 2,000.

An article on the implementation of the Transparency Directive in Austria / Part 2 (regarding notices of employment for assignments abroad, other implemented regulations) will follow shortly.