Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Austria (Ratification: 1973)

The Committee notes the Government’s report as well as the observations made with regard to the application of the Convention by the Federal Chamber of Labour, which were received with the Government’s report.

Legislative developments. The Committee notes that amendments made to the equal treatment legislation in 2008, which inter alia, clarified that the protection against discrimination in respect of termination also applies to non-extension of a fixed-term contract and during probation. With regard to discriminatory terminations, the amendments grant the victim the right to choose between reinstatement and compensation. The Committee asks the Government to provide information on the implementation of these provisions.

Article 1, paragraph 1(a), of the Convention. Political opinion. The Committee previously noted that political opinion was not explicitly included as a prohibited ground of discrimination in the equal treatment legislation, but that according to the Government it could be subsumed under the ground of belief (Weltanschauung). In this regard, the Committee notes from the Government’s report, that the High Court for the first time discussed the term “belief” in 2009 (OGH 9 ObA 122/07t, 24 February 2009). In the Government’s view the decision confirms that political convictions are generally covered by the prohibited ground of belief. The Committee requests the Government to continue to provide information on relevant judicial decisions interpreting the meaning of the various grounds of discrimination, including the ground of “belief”.

Social origin. With regard to the prohibited ground of social origin, which is absent from the existing equal treatment legislation, the Government provides references to a number of studies carried out by the Austrian Employment Service which address issues such as integration of persons with migration background and persons without formal qualifications into the labour market. The Committee notes that exclusion of these groups may be linked to their social origin; however, the ground of social origin as listed in Article 1(1)(a) has a specific meaning. In this regard, the Committee notes the information provided by the Federal Chamber of Labour regarding the meaning given to the grounds of “birth”, “status”, and “class”, referred to in article 7(1) of the Constitution. The Committee also notes the Chamber’s indication that there were reports of instances where persons felt disadvantaged simply because they were from a particular province. Recalling that under the Convention, measures must be taken to address all the grounds listed in Article 1(1)(a), the Committee trusts that due consideration will be given to undertaking a study on disadvantages and discrimination that occur on the basis of social origin. Please indicate any further developments in this regard.

Discrimination based on sex. The Committee notes from the 2006–07 report of the Equal Treatment Ombudperson that a number of applications made to this institution concerned discrimination related to reconciling work and family obligations. The Committee requests the Government to indicate whether the prohibition of discrimination based on sex includes protection of men and women from discrimination based on family responsibilities. Please also provide information on relevant case law.

Article 1, paragraph 1(b). Additional prohibited grounds. The Committee notes from the Government’s report that the competent equality bodies and the courts have started to deal with cases of discrimination based on disability, age and sexual orientation. The Committee notes with interest that the Vienna Provincial High Court in April 2007 held that there was discrimination on the ground of age under the collective agreement for the meat industry to the extent that it provided for different wage levels for shop assistants above 18 years of age in their first two years, and trainees in the same job under the age of 18. The Committee asks the Government to indicate whether the decision has implications for equal treatment of minors in respect of remuneration, more broadly. Please also continue to provide information on the measures taken to address discrimination based on other grounds than those explicitly listed in Article 1(1)(a), as envisaged in the report form adopted by the Governing Body.

Article 2. Equality of opportunity and treatment irrespective of race, colour and national extraction. The Committee notes from the Government’s report that the main area of intervention with a view to promoting equality of opportunity and treatment in employment and occupation irrespective of race, colour and national extraction has been the efforts of the Austrian Employment Service to support the integration into the labour market of persons who have little knowledge of German and are unskilled. The Committee also notes the statistical information provided by the Government in this regard, as well as regarding employment and unemployment rates relating to non-citizens. The Government states that, in accordance with data protection legislation, the Employment Service can only register data regarding ethnic origin in cases where the origin of the employment seeker is a criterion relevant to the process of job intermediation. While noting these explanations, the Committee considers that Austrian nationals with migration background may also be confronted with unequal opportunities and treatment in employment and occupation, and that these situations therefore also need to be monitored and addressed. In the absence of statistical information, the Committee asks the Government to indicate any alternative measures it is taking to monitor the situation of nationals with a migration background, including through surveys and studies. The Committee also asks the Government to consider providing an appropriate legal framework in line with international data protection and human rights standards. It also asks the Government to continue to provide information on the situation of the Roma minority, and on any initiatives undertaken to combat racism and xenophobia, as well as the adoption and implementation of the National Action Plan for Integration referred to by the Federal Chamber of Labour.

Equality of opportunity and treatment of men and women. The Committee notes that the elimination of hidden, structural and direct discrimination against women in the workplace remains a declared priority for the Government. Tripartite discussions on the possible introduction of enforceable workplace agreements on gender equality are ongoing. Women continue to participate in active employment programmes on an equal footing with men. With regard to work and family responsibilities, efforts have focused on strengthening the role of men in parenting and on increasing child care availability and reintegration after child care breaks. Recent reforms of the child care allowance are expected to increase the number of men making use of this entitlement. A study assessing the implementation of the right to part-time work for parents found a 14 per cent share of men making use of this entitlement. A disadvantage found was that those in part-time work had taken over less complex tasks. The Committee requests the Government to continue to provide information on the measures taken to promote gender equality in employment and occupation and the results achieved by such action, including statistical information.

Enforcement. The Committee asks the Government to continue to provide information on the activities of the various equality bodies and information on relevant court cases.