This article was originally published in the schoenherr roadmap`10 - if you would like to receive a complimentary copy of this publication, please visit: http://www.schoenherr.eu/roadmap.
Pursuant to Section 30(1) of the Austrian Labour Constitution Act (Arbeitsverfassungsgesetz), the business owner or the works council is required to make shop agreements available for inspection or post them in a visible location to which all employees have access. Publication of the shop agreement is a prerequisite for its normative applicability to the employees.
New Supreme Court case law
In a recent judgment1, the Austrian Supreme Court addressed the requirements for the legally effective publication of a shop agreement.
In the relevant case, the existing pension fund model – based on a shop agreement – had subsequently been changed by virtue of a shop agreement. The shop agreement, which had been signed to that end, was made available for inspection at the personnel and the works council offices. There was no additional publication pointing out the new shop agreement's existence or its content.
In its judgment, the Austrian Supreme Court held that merely making a shop agreement available for inspection at the personnel office, without further indicating that it may also be inspected, does not constitute proper publication within the meaning of Section 30(1) of the Austrian Labour Constitution Act. As a result, the new shop agreement did not have any normative effect and, consequently, affected employees retained all claims (to the employer's disadvantage) under the old shop agreement.
Consequences
For a shop agreement to have a normative effect, it is not enough to merely "make it available for inspection". Employees must also be notified, in a manner of publication familiar to them, that a new shop agreement has been concluded and may be inspected.
Therefore, in order to avoid the risk of being subsequently confronted with unexpected claims of employees, employers are well advised to satisfy all of the above requirements with regard to shop agreements.
For a shop agreement to have a normative effect, it is not enough to merely make it available for inspection.
This article was originally published in the schoenherr roadmap`10 - if you would like to receive a complimentary copy of this publication, please visit: http://www.schoenherr.eu/roadmap.
Footnotes
1 Supreme Court 28 January 2009, 9 ObA 168/07g.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
