Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the observations made by the Federal Chamber of Labour (BAK), which were attached to the Government’s report.

Legislative development. The Committee notes with interest that pursuant to the amendments made to the Equal Treatment Act, which took effect on 1 March 2011, discrimination by association, that is discrimination of a person due to that person’s close connection with a victim of discrimination, is now prohibited (sections 5, 6, 7, 19, 21, 44, 46 and 47 of the Act). Furthermore, the minimum compensation for harassment and sexual harassment has been increased from €720 to €1,000 (sections 12(11), 26(11) and 51(8) of the Act), and the confidentiality of proceedings before the Equal Treatment Commission has been lifted. The Committee also notes that pursuant to Act No. 140/2011, the public service law was amended, and the quota for women was raised to 50 per cent. The Committee notes further that the provincial authorities of Burgenland, Lower Austria, Salzburg, Styria and Vienna have amended their laws to incorporate the changes made to the federal equal treatment provisions in 2008, related to the protection against discriminatory termination of fixed-term contracts and probationary periods, and made other changes in 2011. Furthermore, the Committee notes that under the equal treatment laws of Burgenland, Salzburg, Styria and Vienna, as last amended, the level of compensation granted may be increased in the case of discrimination based on multiple grounds and the definition of harassment has been aligned with the provisions of the European Union legislation. The provincial legislation of Lower Austria further provides that an instruction to discriminate is also discrimination. The Committee asks the Government to provide information on the implementation of these provisions and on any further legislative developments with regard to the application of the Convention.

Article 1(1)(a) of the Convention. Social origin. In its previous comments, the Committee noted that the existing equal treatment legislation did not explicitly provide for the prohibition of discrimination based on social origin. Noting the several studies on the integration of persons with migration background and persons without formal qualification into the labour market, the Committee had invited the Government to undertake a study on disadvantages and discrimination occurring on the basis of social origin. In its report, the Government indicates that no such study has yet been commissioned but that the prohibited ground of social origin is covered under section 7(1) of the Constitution which provides that no privilege can arise from birth, status or class. It adds that pursuant to section 879 of the Civil Code, an employment contract which does not respect fundamental rights, equality and good morals is null. The Government also indicates that courts have developed case law protecting workers from arbitrary and discriminatory measures taken by the employer. However, the Committee notes that according to the observations made by the BAK, courts and equal treatment commissions in examining cases of discrimination submitted to them, do not interpret domestic legislation in light of Article 1(1)(a) of the Convention nor do they verify compliance with section 7(1) of the Constitution. The Committee recalls that, under the Convention, “discrimination and lack of equal opportunities based on social origin refers to situations in which individual’s membership of a class, socio-occupational category or caste determines his or her occupational future, either because he or she is denied access to certain jobs or activities, or is assigned only certain jobs” (see General Survey on fundamental Conventions, 2012, paragraph 802). The Committee therefore asks the Government to provide detailed information on the decisions of the courts and equality bodies specifically addressing discrimination on the ground of social origin in the context of section 7(1) of the Constitution and section 879 of the Civil Code. The Committee again invites the Government to undertake a study on the forms that may be taken of discrimination on the ground of social origin in respect of access to vocational training, access to employment and terms and conditions of employment, and to provide information on the progress made in this respect.

Discrimination based on sex. The Committee notes that under section 3 of the Equal Treatment Act and section 4 of the Federal Equal Treatment Act, no worker can be discriminated against on the ground of gender, particularly in relation to marital and family status. It further notes that in the public sector, female civil servants are protected from discriminatory treatment in connection with pregnancy or maternity pursuant to the 2009 Civil Service Regulations. The Committee notes further that the equal treatment legislation of the province of Vienna prohibits discrimination based on gender, especially in relation to personal status and parenthood while in the Tyrol, discriminatory treatment against women workers in connection with pregnancy or maternity leave is prohibited. The Committee asks the Government to provide information on any legislative developments granting similar protection in other provinces. Furthermore, taking note of the ruling of 12 December 2010 of the Vienna Labour and Social Court, the Committee asks the Government to continue to provide information on relevant judicial decisions.

Article 1(1)(b). Workers with disabilities. The Committee notes that pursuant to the amendment made to the Equal Treatment Act to harmonize its provisions with the Disabled Persons Placement Act, the minimum compensation for harassment on the ground of disability has been increased from €720 to €1,000 and discrimination by association is prohibited. It also notes the Government’s indication that the Federal Ministry of Labour, Social Affairs and Consumer Protection commissioned a study entitled “Evaluation concerning the right of persons with disabilities to equal treatment”. The Committee further notes that complaints filed under the federal anti-discrimination laws relating to disabled persons (Disabled Persons Placement Act and Equal Treatment of Disabled Persons Act) must first go through conciliation before the Federal Social Security Office. In this respect, the Committee notes that from January 2006 to December 2011, 1,029 conciliation proceedings had been registered, of which 611 cases (59 per cent) concerned direct discrimination, 279 cases (27 per cent) concerned indirect discrimination, and 87 cases (8 per cent) concerned harassment. The Committee asks the Government to continue to supply information on any legislative developments regarding the prohibition of discrimination on the ground of disability and on relevant court cases and the number and nature of complaints submitted to conciliation.

Article 2. Equality of opportunity irrespective of race, colour and national extraction. The Committee notes the Government’s indication that pursuant to an amendment made to the Labour Market Service Act BGB1.I No. 122/2011, immigrant background (persons possessing or having possessed a foreign citizenship, persons with a documented change of citizenship, and the second generation for the latter) shall be recorded as from 2012 for those registered as unemployed or as jobseekers. It also notes the Government’s indication that in 2011, 80,478 persons with an immigrant background were registered as unemployed, which accounted for 32.6 per cent of the total unemployed, and that a total number of 118,397 persons with an immigrant background (of whom 50 per cent were women) were beneficiaries of active labour market policies. According to the “National Action Plan for Integration (NAP) – Facts, figures, indicators 2011” workers with a migrant background were predominantly employed as labourers (47 per cent) and that, owing to the non-recognition of foreign academic diplomas, 28 per cent of the employees born abroad were overqualified for their job position. The Government indicates that in the context of the 2010 labour market policy objectives, the Public Employment Service (AMS) is responsible for the implementation of specific measures aimed at facilitating the entry into the labour market of persons with a migration background. The Committee further notes that, as part of the implementation of the NAP, an independent council of experts, set up to further the concrete implementation of the NAP, proposed in July 2011, an action plan of 20 priority measures (20-Points-Programme) to, inter alia, foster the integration of persons with a migration background into the labour market. The action plan, which involves the collaboration of the Federal Government and various stakeholders, targets three main areas of intervention: recognition and validation of occupational qualifications; further education and training to help migrant workers obtain higher qualifications; and promotion of the employment of female migrant workers. The Committee also notes that 25 indicators have been elaborated to monitor the progress achieved in implementing the recommendations. The Committee asks the Government to provide information on the measures taken to give effect to the recommendations of the independent council of experts and on the state of implementation of the 20-Points-Programme action plan and the results achieved.

The Committee notes that the Viennese association Volkshilfe launched a “New Horizons” project in February 2012 which, among other activities, provides individualized counselling to members of the Roma community in occupational training and career orientation. For the period February 2012 to January 2013 €100,000 had been allocated for a project which includes anti-discrimination activities, public awareness raising and training focusing on the Vienna labour market. Furthermore, it notes the Government’s statement that the next appropriate step would be to establish a permanent counselling centre in Vienna for youth and young adults with a migrant background, marginalized from the labour market, and especially members of the Roma minority. The Committee asks the Government to continue to provide information on measures taken to address discrimination based on race, colour or national extraction and promote equality, including for the Roma and those with an immigrant background, in employment and occupation. The Committee asks the Government to provide information on the results achieved in integrating members of the Roma community into the labour market, including statistics, if available.

Equality of opportunity and treatment of men and women. The Committee notes that the Government pursues action to combat gender discrimination in access to the labour market and in the workplace through the implementation of several programmes. The focus of these measures is on encouraging the reintegration of women workers into the labour market after childcare breaks (“Support for return to work” programme), providing further occupational training to women with family responsibilities (“Competence with system” project) and reconciling work and family life (increase of childcare availability, awareness-raising campaigns in enterprises to develop family-conscious corporate policies). In addition, the Work and Family Audit is currently in the pilot phase, the aim of which is to support companies, institutions and organizations in developing a family-conscious corporate culture. The Government also indicates that 25,642 women were assisted through training and 8,925 women were assisted by counselling and care facilities to return to the labour force, and that the total expenditure for assisting women in returning to the labour force amounted to €81.2 million. The Committee further notes the Government’s initiatives to strengthen the involvement of men in parenting by granting them legal entitlement to four weeks’ unpaid post-natal leave and by increasing the amount of the childcare allowance. In this regard, the Government indicates that the number of fathers claiming childcare allowance has steadily increased since its implementation. The Committee also takes note of the statistics provided in the Government’s report showing an increasing use of day-care facilities. The Committee asks the Government to continue to provide detailed information on the measures taken to promote equality of opportunity and treatment between men and women in employment and occupation and their impact, including statistical data.

Enforcement. The Committee notes that several cases of discrimination on grounds of gender have been referred to the Supreme Court between 2009 and 2011, and there have been a few cases of harassment on grounds of ethnicity. It also notes the anonymous reports of the Equal Treatment Commission’s decisions on individual cases since 2008 (Senate II). However, according to the BAK, discriminatory dismissals are rarely successful before tribunals owing to the fact that the employer can simply raise any other ground, real or spurious, in support of the dismissal. The BAK also points out the necessity of increased awareness raising and training for judges. The Committee asks the Government to continue to provide information on the activities of the Equal Treatment Commission and on any judicial decisions relevant to the application of the Convention. It also invites the Government to forward any comment it wishes to make in reply to the observations of the BAK, including providing information on any awareness-raising activities and training for judges.