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Comments adopted by the CEACR: Austria

ADOPTED_BY_THE_CEACR_IN 2021

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The Committee notes that the first report of the Government on the application of the Protocol of 2014 to the Forced Labour Convention, 1930, has not been received. The Committee requests the Government to provide the first report on the Protocol of 2014 along with its next report on the Convention due in 2024.
The Committee notes the observations made by the Federal Chamber of Labour (BAK) communicated with the Government’s report.
Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Programme of Action. Following its previous comments, the Committee notes the implementation report for the National Action Plan (NAP) to combat Trafficking in Human Beings 2018–2020 attached to the Government’s report. According to this report several projects, initiatives and measures were carried out for strengthening national and international cooperation against trafficking in persons, for sensitization and awareness raising of various occupational groups as well as for improving victim protection and support. The Government also refers to the adoption of a new NAP for 2021–2023, which brings together a total of 109 measures under various topics namely: (i) national and international coordination and collaboration; (ii) prevention; (iii) victim protection; (iv) law enforcement; and (v) monitoring and research. The Action plan also determines who is responsible for, and the time frames for its implementation and identifies indicators of whether and how the measures have been implemented. The Committee encourages the Government to continue taking effective measures to combat trafficking in persons, within the framework of the NAP 2021-23. It requests the Government to transmit information providing an overview of the measures taken in this context as well as on the assessment of the implementation of the NAP, indicating the results achieved, the challenges faced and the measures envisaged to overcome them.
2. Prosecution and penalties. The Committee notes the Government’s information that training courses and other awareness-raising programmes to help identify victims of human trafficking are regularly offered to monitoring authorities such as the police and labour inspectors, judicial officers or youth protection authorities. With regard to the application of section 104(a) of the Penal Code, which criminalizes trafficking in persons with imprisonment for up to five years, the Committee notes that according to the report of the Working Group against Human Trafficking for the Purpose of Labour Exploitation 2018–2020, in 2019 the police carried out a total of 42 preliminary investigations against 62 suspects of human trafficking. A total of 66 victims (including 14 underaged victims) were identified. Most of the cases concerned the offense of trafficking for the purpose of sexual exploitation. Furthermore, according to the report of the Federal Criminal Police Office’s entitled Situation Report, Smuggling and Trafficking in Human Beings 2019, a total of 17 victims were identified in eight investigations into suspected human trafficking for labour exploitation in 2019. According to the evaluation of judicial proceedings from the prosecutor’s office, from 2017 to 2020, there were 318 cases under section 104(a) and 218 cases under section 217 of the Criminal Code relating to cross-border trafficking for prostitution, with 1,002 recorded victims. These included 61 cases under section 104(a) and 41 cases under section 217 in 2020. A total of 25 convictions were secured between 2017 and 2020. The Committee observes that the number of convictions is low compared to the number of cases recorded.
The Committee notes the observations made by the BAK that the strict implementation of effective sanctions, more frequent monitoring and greater cooperation between labour inspectors and agriculture and forestry inspectors on the one hand, and the financial police and the Austrian Healthcare Insurance Fund on the other are required in order to combat trafficking in persons. The Committee further notes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations of 2019, while welcoming the increased number of investigations and prosecutions of traffickers, expressed concern at the lenient sentences imposed on traffickers (CEDAW/C/AUT/CO/9, paragraph 24). The Committee requests the Government to continue to take measures to ensure that investigations and prosecutions of cases of trafficking of persons are carried out and that sufficiently effective and dissuasive penalties are imposed. It requests the Government to continue providing information on the application in practice of sections 104(a) and 217 of the Penal Code criminalizing trafficking in persons and cross-border trafficking for prostitution, including the number of convictions and penalties applied.
3. Identification and protection of victims. The Committee previously noted the Government’s information on the victim protection institutions, which provide psycho-social counselling, accommodation, medical care and legal assistance to victims of trafficking. It further noted that foreign victims of trafficking are granted a period of 30 days to recover and reflect prior to taking any stay-related steps after which they may receive a “special protection” residence permit, if criminal proceedings have been commenced or other claims have been raised.
The Committee notes from the NAP implementation report that a new shelter for male victims of trafficking was opened in 2018, which is fully operational throughout the year with a capacity of over 60 people which will be further extended in 2020. This shelter offers safe accommodation, medical, legal and psychosocial support, crisis intervention as well as litigation support. Furthermore, the red-white-red cards (settlement permit issued pursuant to section 41a of the Settlement and Residence Act, which grants unlimited access to the labour market) were issued for 28 victims of trafficking in 2018, for 45 victims in 2019 and for 33 victims in 2020. The Committee observes that in its observations, the BAK refers to the need to facilitate the acquisition and extension of the right of residence of victims and to improve their access to employment. The Committee requests the Government to continue providing information on the measures taken to improve the identification of victims of trafficking and on services provided to victims of trafficking through different institutions to support their rehabilitation and social reintegration.

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Articles 1(1), 2(1) and 2(2)(c) of the Convention. Work of prisoners for private companies. For a number of years, the Committee has been examining the situation of prisoners who are obliged to work, without their formal consent, in workshops run by private enterprises within state prisons, pursuant to section 46(3) of the Law on the execution of sentences. The Committee noted the indication of the Government that the prisoners working in private-run workshops are supervised only by prison staff and paid by the prison. The Committee repeatedly pointed out that the practice followed in this regard corresponds in all aspects to what is expressly prohibited by Article 2(2)(c), namely, that a person is “hired to” private contractors. It noted, in particular, that the term hired to covers not only situations where prisoners are “employed” by the private company, but also situations where prisoners are hired to private enterprises but remain under the authority and control of the prison administration.
The Committee further noted the Government’s repeated indication that prisoners working for private contractors benefit from rights and conditions of work that are similar to those guaranteed in a free labour relationship. Although the Government indicated that it has stipulated that inmates working in privately run workplaces inside the prison must also provide freely given and informed consent, the Committee noted that section 46(3) of the Law on the execution of sentences was not amended to this effect. Moreover, it noted that according to a document named “Correctional services in Austria” issued by the Ministry of Justice in August 2016, convicts and prisoners subject to precautionary measures of placement, who are fit to work, are obligated by law to take over work. Prisoners who are required to work have to do the work that has been allocated to them, except for work which might endanger their life or subject them to serious health hazards. Moreover, 75 per cent of work remuneration is withheld as contribution to prison costs indicating that on average, prisoners receive €5 per day, after deduction of their contribution to prison costs and of their contribution towards unemployment insurance. The Committee requested the Government to take the necessary measures to ensure that section 46(3) of the Law on the execution of sentences is revised, in order to bring it into conformity with the requirements of the Convention as well as the indicated practice by the Government.
The Committee notes the Government’s information in its report that there have not been any legislative amendments regarding the implementation of the Convention. However, there has been an increase in the rate of pay for those serving custodial sentences in line with the 61.31 per cent increase in the negotiated standard wage index. The Committee also notes the Government’s reference to section 49(3) of the Law on the execution of sentences which guarantees the protection of life, health and safety of the workers as well as other social security benefits, rights and employment conditions that are applicable to prisoners working for private enterprises. Moreover, the Government states that although, the institutions involved in the implementation of custodial sentences may enter into agreements with commercial enterprises on the employment of prisoners, such enterprises have no disciplinary authority over the prisoners and are not permitted to exercise any kind of direct or indirect coercion or issue any orders to the prisoners. The Government further provides examples of private enterprises that offer special professional training and excellent working conditions with additional payments which is on high demand among inmates.
The Government considers that the work prisoners do for private enterprises is given legal status with rights and employment conditions attached which are similar to those of employment outside prisons. It reiterates that, in practice, the free and well-informed consent is obtained from the inmates to work in privately run workshops within the prison premises. It therefore considers that no revision of section 46(3) of the Law on the execution of sentences is required.
The Committee notes with regret that the Government does not envisage taking any measures to legislate and give legal recognition to this point nor has it taken any measures to revise section 46(3) of the the Law on the execution of sentences according to which prisoners are obliged to work, in workshops run by private enterprises without any reference to their consent. The Committee recalls that, by virtue of Article 2(2) of the Convention, the compulsory labour of convicted persons is excluded from the scope of the Convention, provided that it is “carried out under the supervision and control of a public authority” and that such persons are not “hired to or placed at the disposal of private individuals, companies or associations”. These two conditions are equally important and apply cumulatively: the fact that the prisoner remains at all times under the supervision and control of a public authority does not itself dispense the Government from fulfilling the second condition, namely that the person is not hired to or placed at the disposal of private undertakings. If either of the two conditions is not observed, compulsory labour exacted from convicted persons under these circumstances is prohibited by virtue of Article 1(1) of the Convention. The Committee has nevertheless considered that work by prisoners for private enterprises can be held compatible with the requirement of the Convention, if such work is performed by prisoners under a “free employment relationship”, as referred to by the Government. In such circumstances, the prisoners concerned must offer themselves voluntarily, without being subjected to pressure or the menace of any penalty, by giving their free, formal and informed consent to work for private enterprises in law and in practice. The Committee therefore once again requests the Government to take the necessary measures to ensure that section 46(3) of the Law on the execution of sentences is revised, in order to bring it into conformity with the requirements of the Convention and the indicated practice. The Committee also requests the Government to provide information on the number of prisoners working in privately run workplaces inside prison premises. Noting that institutions involved in the implementation of custodial sentences may enter into agreements with commercial enterprises on the employment of prisoners and that such enterprises have no disciplinary authority over the prisoners, the Committee requests the Government to provide information on the manner in which the prison authorities exercise control and, if appropriate, discipline on prisoners engaged in work benefiting commercial enterprises. The Committee further requests the Government to indicate the circumstances in practice of what is characterized as free and well-informed consent of the prisoners and to indicate whether their refusal to carry out such work is subject to disciplinary sanctions.
The Committee is raising other matters in a request addressed directly to the Government.

ADOPTED_BY_THE_CEACR_IN 2019

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The Committee notes the observations of the Federal Chamber of Labour (BAK) communicated with the Government’s report.
Article 2 of the Convention. Income threshold for sickness insurance coverage. The BAK indicates that workers with earnings less than €425.70 per month are covered only in case of incapacity for work due to an industrial accident, but not in case of suspension of earnings due to ill health, as required by the Convention. The BAK further indicates that the number of domestic workers in “marginal employment” who are excluded from sickness insurance coverage is higher than those who are fully insured. The Committee recalls that, notwithstanding Article 2(1) of the Convention which requires that manual and non-manual workers, including apprentices, employed by industrial undertakings and commercial undertakings, outworkers and domestic servants be compulsorily covered by sickness insurance, Article 2(2)(a) allows some exceptions to be made in respect of employment of a certain nature, including occasional, casual and subsidiary employment. In view of the above, the Committee requests the Government to indicate how many workers are excluded from sickness insurance due to the earnings threshold, and to provide information on any other means of protection to ensure that these workers, in case of sickness, have access to medical care and, where sickness involves a suspension of earnings, to income support.

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The Committee notes the observations of the Federal Chamber of Labour (BAK), received on 12 August 2019, concerning the annulment by an act of Parliament of provisions in collective agreements recognizing Good Friday as a statutory public holiday for members of the Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church. The Committee notes that the BAK states in particular that: (i) under section 7(3) of the Rest Periods Act (ARG), Good Friday was a statutory public holiday for members of the four churches; (ii) on 22 January 2019, the European Court of Justice decided in Case C–193/17 that the Good Friday regulation represented a direct discrimination on the grounds of religion and that until the Government amends its legislation, in order to restore equal treatment, all employees are entitled to this public holiday irrespective of their religious affiliation, or to compensation, if directed to work by their employer on this day; (iii) the Government has thus decided to abolish Good Friday as a statutory public holiday; (iv) the legislation was subsequently amended in a manner that directly interferes with provisions of collective agreements that provide for a day off on Good Friday for employees who are members of one of the churches in question, rendering these provisions invalid; and (v) the decision by the Government and the legislative amendment were made without the social partners being given the opportunity to conduct talks on the collective agreements concerned and on more appropriate ways to remove the mentioned discrimination. The Committee requests the Government to provide its comments on the observations mentioned above.

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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The Committee notes the observations submitted by the Federal Chamber of Labour (BAK), received on 12 August 2019, related to issues addressed in the present comment.
Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that in its previous comments, based on observations made by the BAK and while considering that the relevant provisions were not contrary to the Convention, it had requested the Government to provide information on any measure envisaged to prevent abuse in relation to section 122(1)(v) and (3) of the Labour Constitution Act (possibility to dismiss workers’ representatives without prior approval of the courts in cases of grave insults against the employer). Also based on observations made by the BAK concerning section 122(1)(iv), under which courts may approve the dismissal of workers’ representatives on the grounds of disclosure of industrial secrets, the Committee had requested the Government to indicate how it is ensured that the grounds on which courts may approve the dismissal of workers’ representatives laid down in section 122(1)(iv) and (v) of the Labour Constitution Act, namely violation of the confidentiality requirement and grave insult against the employer, are subject to a sufficiently narrow interpretation. The Committee notes that the Government reiterates its last statement and indicates that: (i) since its last comments, there have been no changes in this regard; and (ii) the Federal Ministry of Labour, Social Affairs, Health and Consumer Protection has not been notified or received complaints of any abuse by employers of section 122 of the Labour Constitution Act, nor has it received any suggestions for legislative amendments. The Committee also takes note of new observations made by the BAK, according to which, as illustrated by a recent decision of Supreme Court of Justice (OGH 27.5.2015, 8 Ob A 17/15f), there is substantial tension between, on the one hand, the exercise of rights of co-determination and rights to be involved in trade union activity and, on the other hand, the confidentiality obligations on the part of works council members. In these circumstances, the Committee requests the Government to continue providing information as to how it is ensured that the grounds on which courts may approve the dismissal of workers’ representatives laid down in section 122(1)(iv) and (v) of the Labour Constitution Act (violation of the confidentiality requirement and grave insult against the employer), are subject to a sufficiently narrow interpretation taking into account the concerns raised by the BAK.
The Committee further notes that, in its new observations, the BAK also states that: (i) in practice, employers repeatedly attempt to prevent works council elections, for instance, by dismissing employees who wish to stand as candidates within an enterprise or even by threatening to shut down the entire enterprise if the employees elect a works council; (ii) workers’ representatives employed under fixed-term contracts are not covered by the general protections against dismissal set by section 105(3) of the Labour Constitution Act; and (iii) in the opinion of the European Committee of Social Rights of the Council of Europe, section 120(3) of the Labour Constitution Act, according to which employment and dismissal protection for works council members end as early as three months after their membership expires, should be revised. Emphasizing in particular that the protection against anti-union discrimination established by Article 1 of the Convention applies to workers’ representatives in the enterprise, regardless of their contractual status, the Committee requests the Government to reply to the observations made by the BAK.
Article 2. Facilities afforded to worker’s representatives. The Committee notes with interest that, by virtue of the adoption of Federal Act BGBl. I No. 12/2017, the right of every work council member to time off for training has been expanded from three weeks to three weeks and three days. The Committee notes the Government’s indication that this extension takes into account the fact that works council members have to deal with increasingly complex issues.
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