Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information provided in the Government's latest report as well as the communication made by the National Labour Federation (NLF).

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

In its previous comments, while noting the Austrian Congress of Chambers of Labour's (OAKT) indication that section 122 of the Collective Labour Relations Act of 14 December 1973 permitted workers' representatives to be dismissed without prior approval of the courts upon criminal conviction or upon committing assaults or "grave insults" against the employer, his or her family members, or against other workers in the establishment, the Committee considered that, absent any specific examples demonstrating negative application, this provision was not in violation of the Convention.

In its communication, the NLF states that, since the employer can dismiss a worker for having committed bodily assault or insult without the prior consent of the court, there is room for the employer to fabricate such accusations against a member of the works council simply in order to obstruct the performance of its duties. While the employer must inform the courts as soon as possible after the dismissal, an initial judgement in favour of the worker and calling for reinstatement may still take several months up to a year in which time sufficient damage may have already been caused to the functioning of the works council and the worker's mandate. Furthermore, according to the NLF, since the career of a works council member is put under serious threat in this respect, such cases have a catastrophic effect on employees' readiness to become involved in works councils. The NLF then provides a specific example of a works council chairperson who was dismissed without notice for allegedly having insulted a member of staff. The Government, for its part, maintains its previous position that, in the case of serious offences committed by works council members, a dismissal is justified against subsequent court consent and a worker dismissed under a fabricated offence can normally be assumed to prevail in the court proceedings of first instance, thus ensuring that the wronged worker will not have to wait an unduly long period of time to be reinstated.

The Committee reiterates its opinion that section 122 of the CLRA is not in violation of the Convention. Nevertheless, in the light of the indication provided by the NLF concerning the manner in which section 122(3) may give rise to abuse by the employer in order to interfere with the functioning of the works council, the Government might wish to envisage taking into consideration Paragraph 6 of the Workers' Representatives Recommendation No. 143 which provides that specific measures taken to ensure effective protection of workers' representatives might include a requirement of consultation with an advisory opinion from, or agreement of an independent body, public or private, or a joint body, before the dismissal of a workers' representative becomes final.

2. Representatives at small enterprises

The Committee notes from the Government's latest report that demands for a lowering of the limits for release of members of works councils were made repeatedly by the employees at the time of the last amendment to the Basic Employment Act, but were rejected by the employers so that realization was not possible. While acknowledging that account should be taken of the characteristics of the industrial relations system of a country and of the need, size and capacity of the undertakings concerned, the Committee must recall its previous comments in which it considered that the release of one works council member per 150 employees under section 117 of the Collective Labour Relations Act could not be considered a reasonable number and could not ensure that workers' representatives in small enterprises were not denied the protection and facilities laid down in the Convention. The Committee asks the Government to indicate, in it next report, any progress made to lower this limit, in consultation with the employers' and workers' organizations, so as to ensure that workers' representatives in small enterprises are afforded the protection and facilities to enable them to carry out their functions.