Austrian OGH: Applicability of SWÖ Collective Agreements

Sept 19, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has clarified that the collective agreement of Sozialwirtschaft Österreich (hereinafter SWÖ-KV, which represents the interests of Austrian private social and health sector member organisations) does not apply to student residence operators who are not members of SWÖ.

The defendant in the case at hand is a non-profit organisation that manages student residences with the aim of providing affordable accommodation for students, especially those from low-income backgrounds. The plaintiff was employed as a cleaner by the defendant and requested additional remuneration under the relevant Austrian legislation as well as the SWÖ collective agreement.  

The lower courts dismissed the claim, finding the SWÖ collective agreement inapplicable.

Student Residence Operators: Not Classified as ‘special social services providers’

The OGH has confirmed this decision:

Since the defendant is not a member of SWÖ, direct application of their collective agreement is excluded. Nevertheless, through regulatory provisions, the SWÖ collective agreement has been incorporated into the statutes.

The defendant does not offer ‘services of a caring nature’, as specified by the wording in the relevant regulations, according to the OGH.  

The court of appeal had already pointed out that the term ‘care’ is understood to mean ‘taking someone into one’s care’ or ‘looking after someone’wird. 'Care' typically means taking responsibility for another person, so providing living space or only financial support does not qualify as care.

Finance Ministry guidelines are not definitive

Although the relevant association guidelines issued by the Austrian Federal Ministry of Finance (Bundesministerium für Finanzen, BMF) refer to the care of students—such as through the operation of student residences—this terminology does not align with standard usage. The Austrian Student Residence Act (Studentenheimgesetz) does not include ‘taking care of students.’

Student residence operations are not classified as a 'caring' social service, so the plaintiff's job is not covered by the SWÖ agreement.

OGH 8 Ob A28/25p (12 August 2025)