Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

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.

Articles 1 and 2 of the Convention. Legislative development. The Committee notes with interest that, pursuant to the amendments made to the Equal Treatment Act (GIBG), which took effect on 1 August 2013, protection against discrimination is now extended to the whole duration of vocational training and further training services as well as to self-employment. The Act also provides that compensation in judicial proceedings concerning discrimination must be effective and proportional. The Committee further notes that, following the amendments of the Federal Equal Treatment Act (B-GIBG) in 2012 and 2013, protection against discrimination is now extended to discrimination based on an individual’s parental status, and on the income of an applicant’s registered partner. In relation to proceedings concerning sexual and other harassment, the period of limitation is now extended to three years and the chairperson can order separate hearings during the process. Moreover, sessions of the Federal Equal Treatment Commission are now not open to the public, and the courts have to provide reasons for deviating from the Commission’s expert opinion in compensation proceedings. Finally, the Committee notes that under the different provincial equal treatment laws, as last amended, discrimination by association is now prohibited in Burgenland and Styria. The level of compensation granted may be increased in Upper Austria in cases of discrimination based on multiple grounds; in Styria in cases of discrimination based on sex; and in Tyrol in cases of harassment and sexual harassment. Furthermore, in the provincial legislation of Burgenland, discrimination is now extended to all grounds of discrimination, and to both employed and self-employed persons. Finally, the provincial legislation of Upper Austria now provides that the burden of proof lies with the person accused of discriminating. 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). Social origin. In its previous comments, the Committee asked the Government to provide detailed information on the decisions of the courts and equality bodies specifically addressing discrimination on the grounds of social origin and to undertake a study on the manifestation of discrimination on the basis of social origin in respect of access to vocational training, access to employment, and terms and conditions of employment. In this regard, the Committee notes that the Government reiterates in its previous indications 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; and 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 refers to the jurisprudence of the Supreme Court (OGH), which shows that dismissals contrary to section 7(1) of the Constitution are without effect, under section 879 of the Civil Code (immorality), and that discrimination on the basis of social origin is therefore also without effect because of immorality, together with the equality principle. The Committee requests the Government to closely monitor emerging forms 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 any cases that had been handed out by the courts and equality bodies in this regard.

Article 1(1)(b). Workers with disabilities. In its previous comments, the Committee asked the Government to continue to supply information on any legislative developments regarding the prohibition of discrimination on the ground of disability, as well as on relevant court cases and the number and nature of complaints submitted for conciliation. The Committee notes that, according to the 2014 National Social Report of the Ministry for Social Affairs, the National Labour Market Policy Programme (BABE) Disability Training-Employment for 2014–17 was adopted in 2013. The Committee also notes from the Government’s Fourth Report under the Social Charter of the Council of Europe (CoE), that the Public Employment Service (AMS) has provided additional funding for employment promotion, particularly granting integration subsidies for persons with disabilities as well as skills training programmes; and it has collected statistical information relating to jobseekers with disabilities (RAP/RCha/AUS/4(2016), pages 61–62). The Government also indicates that there have been no cases concerning discrimination based on disability thanks to the high success rate of the conciliation proceedings. In this respect, the Committee notes that from December 2011 to December 2014, 692 conciliation proceedings have been registered, of which 419 (60.5 per cent) cases related to direct discrimination, 211 (30.5 per cent) cases to indirect discrimination, and 62 (9 per cent) cases to harassment; and that, among the 665 cases dealt with, agreement was reached in 296 cases. The Committee asks the Government to continue to provide information on any legislative developments regarding the prohibition of discrimination on the grounds of disability as well as on the measures adopted or envisaged in order to promote equal opportunities for persons with disabilities in employment and occupation under the National Labour Market Policy Programme (BABE) Disability Training-Employment for 2014–17, and the results achieved. It asks the Government to continue to provide information on relevant court cases adopted and on the number and nature of complaints submitted for conciliation.

Article 2. Equality of opportunity irrespective of race, colour and national extraction. In its previous comments, the Committee requested the Government to provide information on the measures taken to give effect to the recommendations of the Independent Council of Experts as well as on the state of implementation of the 20-Points-Programme action plan, and the results achieved. The Committee notes that, following the recommendations of the Independent Council of Experts set up to further the implementation of the National Action Plan (NAP), various measures were adopted in order to improve migrant workers’ opportunities for access to more highly qualified areas of the labour market, such as the adoption of legislation concerning the recognition of qualifications obtained abroad on 12 April 2016, the establishment of cost-free and multilingual advice centres, and the implementation of the project “mentoring for migrants”. Nevertheless, the Committee notes that according to the European Commission against Racism and Intolerance (ECRI), in 2013 the unemployment rate for persons originating from ex-Yugoslavia (outside the European Union) was 11.6 per cent, for persons from Turkey 15.4 per cent, and for persons from third countries 17.2 per cent, whereas the general rate was 7.6 per cent. The Committee also notes from the ECRI’s report that the labour market participation rate of women with migration backgrounds was significantly lower than that of majority population of women (58 per cent compared to 70 per cent). The Committee asks the Government to continue to provide information on the measures adopted or envisaged, including those adopted under the NAP, to promote equality of opportunity irrespective of race, colour and national extraction. The Committee also requests the Government to provide information on the results of such measures, including statistical information, to evaluate the impact on employment and occupation of migrant workers, especially migrant women.

Roma people. The Committee notes the information provided by the Government concerning the adoption of the Roma-Strategy in 2012, the elaboration of its progress report in 2013, and the establishment of a National Roma Contact Point in June 2012. The Government further refers to the publication of the “Call for the Empowerment of Roma in the Labour Market” in 2015, and to the “THARA project”, which aims to promote the access of the Roma to the labour market and to vocational educational institutions. The Government also indicates that, through the European Social Fund, €1 million are allocated annually to support employment measures targeting the Roma. Welcoming these measures, the Committee asks the Government to continue its efforts to promote employment opportunities and to ensure equal treatment of the Roma in employment and occupation. It asks the Government to further provide information on the results achieved in integrating members of the Roma community into the labour market, including statistics, disaggregated by sex, if available.

Equality of opportunity and treatment of men and women. With respect to measures taken to promote equality of opportunity and treatment between men and women in employment and occupation, the Government indicates that several measures were adopted to assist workers with family responsibilities, such as a period of paternity leave up to 31 days, a new option for employers to agree with their employees on leave arrangements for caring of children, the granting of maternity leave, and protection against dismissal of “free contractual employees” and the increase in the number of childcare places. The Committee notes, however, that according to the observations made by the BAK, “daddy month” or the “anticipated paternal leave” exists only in the public sector as well as in a few sectors in the private sector through collective agreements. Furthermore, the Committee notes that various measures were adopted in the regions, which aim at promoting equality of opportunity and treatment of men and women in the labour market, inter alia, the elaboration of a study on discrimination against women in employment and occupation by the Burgenland women’s council, and the adoption of the equality programme for 2012–14 in Vienna. While welcoming the steps taken to promote equality of opportunity and treatment of men and women, the Committee emphasizes the importance of providing information on the specific results and on the effectiveness of the measures taken in accordance with Article 3(f) of the Convention (2012 General Survey on the fundamental Conventions, paragraphs 856 and 858). The Committee encourages the Government to continue its efforts to promote gender equality in the labour market and requests it to provide detailed information on the results achieved in contributing to and ensuring equality of opportunity and treatment between men and women in employment and occupation in practice, including statistical data, disaggregated by sex.

Enforcement. In its previous comments, the Committee asked 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 as well as on any awareness-raising activities and training for judges. The Committee notes that several cases of discrimination on the grounds of sex have been referred to the Supreme Court, the Higher Regional Court of Vienna, and the Labour and Welfare Court of Vienna between 2012 and 2014, and that there had been a few cases of discrimination on the grounds of ethnicity, age, sexual orientation, and religion or opinion as well as cases of sexual harassment. The Committee further notes the anonymous reports of the Equal Treatment Commission’s decisions on individual cases since 2012, and the Committee notes the Government’s indication that judges are trained on equal treatment and non-discrimination during their careers. 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.