OGH: Hotel and gastronomy industry not a "seasonal industry”

Jun 10, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that the hotel and gastronomy industry is not an "industry in which seasonal businesses predominate" as defined in Section 1159 para 2 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB). Therefore, collective agreements in this sector cannot deviate from the now aligned termination notice periods for workers.

The Professional Association of the Hotel Industry and the Professional Association of the Gastronomy Industry in the Austrian Federal Economic Chamber (Wirtschaftskammer Österreich, WKO) applied for a declaration that a termination rule (14-day right of termination) contained in the collective agreement for workers in the hotel and gastronomy industry is also effective after September 30, 2021. As of October 1, 2021, the amended version of Sec. 1159 ABGB puts the termination notice periods of blue-collar workers on an equal footing with those of white-collar workers. However, the last sentence of Sec. 1159 para 2 allows for a deviating regulation in the collective agreement in sectors in which seasonal businesses as defined by Sec. 53 para 6 of the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG) predominate.

The OGH commented on this as follows:

First, the OGH found that any collective agreement provisions were not superseded as such by the amended version of Sec. 1159 ABGB. A collective agreement provision already created before the amended Sec. 1159 ABGB came into force continues to exist thereafter as long as the legal requirements are fulfilled.

Moreover, according to the OGH, the definition of the "industry" can be determined according to the technical scope of the collective agreement.

The "predominance of seasonal businesses" depends on a quantitative predominance of businesses. In particular, market shares, turnover or the number of seasonal workers are not to be taken into account. Moreover, a mere selective predominance is not sufficient.

In concrete terms, however, the applicants' submissions were not sufficient to establish a predominance of seasonal businesses. Although fluctuating staffing levels were mentioned, it was not clear whether the reason for this was "working only at certain times of the year" or "regularly working considerably more at certain times". In particular, numerous hotel and catering establishments throughout Austria are operated all year round and are only closed for short periods of time.

OGH 9 ObA 116/21f (24.03.2022)