Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the comments concerning the application of the Convention submitted by the Austrian Congress of Chambers of Labour (OAKT).

These comments related to the alleged failure of the Government to satisfy the Convention in three areas: (1) that under Section 122 of the Collective Labour Relations Act of 14 December 1973 ("the Act"), workers' representatives may be dismissed without prior approval of the courts upon criminal conviction, or upon being found guilty of assault or "grave insults"; (2) that under the Act workers' representatives have no protection against bankruptcy of the enterprise; and (3) that a rate of one worker's representative per 150 workers under Section 117 of the Act is inadequate for small enterprises and, further, that time off is limited to an overly narrow range of issues.

The Committee notes the Government's statement that it has not violated any of the provisions of the present Convention. The Government adds, however, that it has begun consultations on the third issue with OAKT.

1. Instant dismissal based on criminal conviction/insults, etc.

The Government points out that the two categories in Section 122 of the Act under which workers' representatives may be instantly dismissed are exceptions to the general rule that they may not be dismissed without prior court approval. The two exceptions, the Government states, involve particularly egregious conduct - specifically (a) convictions requiring prison sentences of at least one year or (b) guilt of committing assaults or "grave insults" against the employer or members of the employer's family who are working or present in the establishment or against other persons employed in the establishment. In both (a) and (b), the employer is required to request authorization of a tribunal "at the earliest opportunity" after the dismissal. OAKT asserts that these exceptions prove in practice to obstruct works councils in the exercise of their mandates and that they do not satisfy the Convention.

The Committee notes that OAKT has provided no specific examples of negative applications of Section 122(5). The Committee therefore considers that, as it stands, there is no violation of the Convention.

2. Bankruptcy of the enterprise

OAKT indicates that works council representatives have been denied compensation for termination of the labour relationship upon bankruptcy of the enterprise. They allege that this denial fails to satisfy the special protection provisions of the Convention. In its report, the Government stresses that when the entire workforce is affected without distinction, as in insolvency, no discrimination occurs.

The Committee considers that there are no violations of the Convention when a bankruptcy has not been abetted by anti-union discrimination and when it affects all workers without distinction.

3. Representation at small enterprises

OAKT further points out that the release of one works council member per 150 employees (Section 117 of the Act) does not provide adequate representation to small enterprises and that workers' representatives should be permitted time off for general training in trade union activities. The Government considers that the law meets the requirements of the Convention by affording such facilities as may be appropriate in order to enable workers' representatives to carry out their functions promptly and efficiently, but states that it has begun talks regarding the 150 employee limit. The Committee recalls to the Government that it is important to apply a reasonable criterion to ensure that workers' representatives in small enterprises are not denied the protection and facilities laid down in the Convention. The Committee considers that 150 workers can on no account be considered a reasonable number. The Committee asks to be kept informed about the results of these discussions.