VwGH: Unemployment Benefits Despite Marginal Employment

Mar 7, 2025 Benn-Ibler Rechtsanwälte

The Austrian Administrative Court (Verwaltungsgerichtshof, hereinafter VwGH) has ruled on whether an employee who continued to work for another employer on a marginal basis in addition to a fully insured job that had been terminated was entitled to unemployment insurance benefits.

The co-litigant applied to the Austrian Employment Agency AMS (Arbeitsmarktservice, hereinafter AMS) for unemployment benefits starting 15 April 2024. However, AMS did not grant her unemployment benefits until 8 May 2024 because she had previously given up her fully insured employment, but not her minor employment with another employer.

The co-litigant filed an appeal against the AMS decision, arguing that she should have received unemployment benefits as of 15 April 2024.

The VwGH allowed the appeal. In its assessment, the court gave detailed reasons for correcting the AMS’s view that all minor employment must be terminated to be considered unemployed. Since Section 12(3)(h) of the Austrian Unemployment Insurance Act (Arbeitslosenversicherungsgesetz) did not apply, the co-litigant had already been unemployed since 16 April 2024. She had also fulfilled all the other conditions for entitlement, so she would have been entitled to unemployment benefit from that date on.

The Austrian Federal Administrative Court (Bundesverwaltungsgericht, BVwG) was then called in and rejected the review by AMS, thus confirming the decision of the VwGH.

Marginal employment (i.e., employment not subject to social insurance contributions) does not exclude the classification as ‘unemployed’. An entitlement to benefits exists as soon as at least one employment relationship giving rise to such an entitlement is terminated and the sum of the remaining and/or newly added entitlement(s) to remuneration does not (no longer) exceed the marginal earnings threshold.

Ra 2024/08/0103 (19 November 2024)