Austrian Supreme Court: ‘Training’ Was an Employment Relationship

Jul 21, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has defined an unpaid traineeship as an employment relationship and awarded the plaintiff appropriate remuneration. In doing so, the OGH clarified the criteria for distinguishing traineeships from employment relationships.

The plaintiff in the original case (the trainee) undertook training as a medical masseur at the defendant’s (the employer’s) training centre. In addition to theoretical and practical lessons, the programme included a professional traineeship of over 800 hours. In the written training contract, it was agreed that the training relationship would be free of charge.

The OGH confirmed the court of appeal’s view that this was not a traineeship but a genuine employment relationship for the following reasons:

Traineeships are primarily driven by the trainees' interest in acquiring practical knowledge and skills in accordance with their respective training requirements. They are not primarily oriented towards the operational needs and objectives of the enterprise owner. In addition, trainees have greater freedom of time and are characteristically not tied to the owner of the enterprise.

A traineeship, however, is not considered to be a traineeship if the trainee is a substitute for another employee (e.g., as a holiday stand-in), is subject to specific working times, is expected to follow orders, and is integrated into the business processes.

In the original case, the plaintiff performed a try-out massage on the first day of ‘training.’ From the second day, the defendant did not monitor the plaintiff’s activities, who performed approximately 8 massages per day. The plaintiff was also given a daily schedule.

The scheduling of work by means of a duty roster does not fundamentally contradict the nature of a traineeship, as confirmed by the OGH. The usefulness of the results of the work is also not a fundamental obstacle to the nature of a traineeship being that of learning and training. However, if there is no instruction at all and the trainee is ‘used’ like other employees for the entire duration, an employment relationship exists. Moreover, the clients paid the same for massages given by the plaintiff as for massages given by other employees of the defendant. The fact that the trainee was indeed a trainee was also not communicated to the clients.

The plaintiff is entitled to appropriate remuneration, as it was only agreed that there would be no remuneration for a training relationship, but not for a genuine employment relationship – which actually existed in this case.

Austrian Supreme Court 9 ObA 1 /23x (16 Feb 2023)