What sanctions or options for legal action are available?
Violation of employment laws: remedies available under private law and public law
Rights and obligations relating to the employment sphere come under either private law or public law in Austria.
Whether claims and obligations based on employment laws are founded in private or public law is a significant consideration both for the legal consequences and for determining the type of proceedings and the authorities able to provide support in enforcing the claims and obligations.
Employment regulations under private law have to be enforced by individual civil court action taken by the claimant.
Compliance with employment regulations under public law is monitored by the authorities. When learning of any breach of such regulations, the authorities take steps on their own initiative (i.e. ex officio) to ensure that the regulations are enforced.
The objective of individual civil court action in response to a violation of employment regulations is a court ruling. The civil court ruling awards to the claimant monetary compensation or restores by some other means a situation of legal compliance (e.g. by declaring the termination notice to be void).
When, on the other hand, the authorities intervene ex officio in a violation of employment regulations, the outcome is an official administrative measure such as, most commonly, imposing a fine or prohibiting continued work under the existing unlawful circumstances.
If the posted or hired-out employee primarily wishes to achieve compensation – be it monetary or of any other kind – for damage caused by a breach of employment regulations on the part of the employee’s employer, that employee must enforce the claim for damages by taking civil court action (before the Labour and Social Court, Arbeits- und Sozialgericht).
- If the posted or hired-out employee wishes to achieve general compliance – not just in the case at hand but for all those affected – with provisions of public law pertaining to matters such as working time or health and safety at work, the employee must approach administrative authorities (by informing them personally or in writing or by reporting the offence (Strafanzeige)).
Minimum wage requirements represent a highly important special case in this regard:
The payment of due remuneration is related in Austria to aspects of both private and in public law, as explained in the following.
Under private law, the posted or hired-out employee is entitled to receive from their employer in the least the level of remuneration specified as a minimum by law, ordinance or collective agreement in Austria.
If the employer fails to (fully) satisfy that claim, the employee can take action to enforce the claim before the regionally competent Labour and Social Court.
The administrative authorities simultaneously verify whether posted or hired-out employees are in fact being paid that minimum wage.
If the employer refuses to provide proof of due remuneration or actually pays less than the minimum wage, this breach of employment law additionally entails legal consequences under public law. Specifically, a fine will be imposed on the employer and, in serious cases, a ruling will be issued that prohibits that employer from deploying in future any posted or temporary agency workers in Austria.