OGH on the reimbursement of educational costs of minors

Nov 10, 2021 Benn-Ibler Rechtsanwälte

In the present case, the Supreme Court (Oberster Gerichtshof, OGH) dealt with the permissibility of an agreement on the reimbursement of training costs between a minor and her employer.

In the case in question, a minor concluded a contract of employment for training purposes as a “dental assistant” with her employer, which was subject to the collective bargaining agreement for "employees of dentists" and obligated the plaintiff to attend the "course for certified dental assistants". Furthermore, she concluded a repayment agreement in the amount of EUR 3,900 in writing, for which no approval by the guardianship court was obtained. In this agreement, the underage employee was obliged to make her acquired knowledge available to the employer for at least three subsequent years after completing the training. In the event of premature termination, the employee must reimburse the costs of the training. As the plaintiff resigned in August 2018, she paid the required training costs.

In June 2020, the plaintiff filed a claim for repayment of the training costs. According to Section 167 para 3 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), approval by the guardianship court would have been required.

However, the OGH ruled against the application of Sec. 167 para 3 of the ABGB, as the historical legislator did not intend to standardise a guardianship court approval in connection with Sec. 2d para 3 no 1 of the Labour Contract Law Amendment Act (Arbeitsvertragsrechts-Anpassungsgesetz, AVRAG). Although the consent of the legal representative was required - as was the case in this instance - the consent of the guardianship court was not.

Nevertheless, the OGH affirmed that the repayment of the costs by the plaintiff was without legal grounds. The plaintiff's training relationship was similar to an apprenticeship under the Vocational Training Act (Berufsausbildungsgesetz, BAG). In doing so, the OGH relied on the standard training, equivalent to the apprenticeship profession of a dental assistant, which was included in the contract of employment which the plaintiff completed, as well as the remuneration of the minimum salary in the first three years of training as stipulated in the collective bargaining agreement. Therefore, the focus is less on the service and more on the nature of the apprenticeship, which makes a reimbursement agreement inadmissible.

9 ObA 66/21b (02.09.2021)