OGH: Transfer Protection for Remote Workers

Oct 20, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recognised that a worsening of the transfer situation within the meaning of Section 101 of the Austrian Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG) can occur even if the new workplace allows for less working from home than the previous one.

In the case at issue, the claimant was a contract worker employed by a municipality in Upper Austria. Most recently, he was assigned to a limited liability company pursuant to the Upper Austrian Act on the Assignment of Municipal Employees (OÖ Gemeindebediensteten-Zuweisungsgesetz) where he was granted the right to work remotely for 80 % of his weekly working hours. He was removed from this position with effect from 1 January 2023 and assigned to a holding company by letter dated 8 April 2022.

He is now challenging this transfer, which he considers to be ineffective and aggravating.

The appellate court agreed. The change of assignment announced in the letter of 8 April 2023 was invalid under Section 101 ArbVG. This was because the transfer led to a deterioration in other working conditions and would have required the works council’s consent.

The OGH was in disagreement with the court of appeal, but for different reasons:

First of all, the OGH made it clear that Section 101 of the ArbVG also applies to remote working (Section 2h(1) of the Labour Contract Law Adjustment Act, Arbeitsvertragsrechts-Anpassungsgesetz, AVRAG). A comparison of the overall situation of the employee before and after the transfer is required to determine whether the transfer is worse. In doing so, objective criteria must be used to assess whether the prospective new job is, on the whole, less favourable for the employee concerned than his current or previous job.

However, in the OGH’s opinion, the letter of 8 April 2022 did not result in a change of job because the authority of the holding company for the new employee was not transferred to the holding company until 1 January 2023. The employee’s new job role could only be determined at that time. The necessary comparison between the old and the new job could therefore not be made before that date.

(Only) for this reason the OGH dismissed the employee’s claim.

OGH 8 ObA 27/23p (3 August 2023)