Pursuant to an amendment to the Austrian Working Hours Act and the Austrian Rest Periods Act, which came into force on 1 September 2018, the maximum daily working time has increased from 10 hours to 12 hours and the maximum weekly working time from 50 hours to 60 hours. The regular working hours of 8 hours per day and 40 hours per week (or less, under an applicable collective bargaining agreement), however, remains unchanged. Any work performed beyond the regular working hours continues to qualify as overtime work for which employees are entitled to extra remuneration. Employees can choose whether they prefer to receive their overtime remuneration in cash or by way of compensation.

In the past, executive employees have been exempt from the maximum working hours and mandatory rest periods under the Austrian Working Hours Act and the Austrian Rest Periods Act. The exemption was extended on 1 September 2018 and will also apply to any employees “having significant independent decision-making authority" as well as "close relatives of the employer".

Under the new EU General Data Protection Regulation, the processing of personal data in the context of a job application is strictly limited to the purposes of the application process (establishment of an employment relationship). Therefore, the personal data of applicants that are unsuccessful should be deleted without delay unless an applicant has specifically consented to it being stored. In addition, a legally binding decision of the Austrian Data Protection Authority has confirmed that the recipient of a job application has a legitimate interest to store the applicant's data for as long as a rejected applicant may raise claims for unlawful discrimination. Accordingly, an applicant’s data may be stored for a period of 7 months from the date of rejection.

From 1 July 2018, there will be an alignment of the rules applicable to blue collar employees with the more employee-friendly rules applicable to white collar employees.

The changes will include:

• in cases of repeated illness, employees will only be eligible for sick pay for the maximum term applicable for a single incident, except where the illness relates to an accident at work or occupational illness;
• if an employee is unable to work, through no fault of their own due to reasons other than illness, there will be a mandatory entitlement to continued pay. Provisions to the contrary in existing collective bargaining agreements will no longer apply;
• termination of employment after December 31, 2020 will be subject to the same notice periods and dates currently applicable to white collar employees. Accordingly, termination with 14 days’ notice will no longer be possible;
• apprentices will be entitled to 8 weeks sick pay instead of 4 and employees’ entitlement to sick pay will be extended from 6 to 8 weeks; and
• it will be possible to stipulate in a collective bargaining agreement or a shop agreement that the calendar year rather than the employment year shall be relevant for the assessment of the maximum term of sick pay.

On 1 January 2017, a newly enacted Wage and Social Dumping Control Act (Lohn- und Sozialdumping-Bekämpfungsgesetz - LSD-BG) (the “Act”) came into force. The Act aims to combat wage and social dumping by foreign employers in the context of the cross-border assignment of employees into Austria. To a large extent, the new legislation only compiles existing rules which are currently spread over several laws. However, the Act, also includes a more strict liability regime for clients and general contractors in the construction industry, new exemptions for cross-border employee assignments within a group, and a simplification of reporting duties and rules on the cross-border cooperation of the competent authorities in EU Member States.

Under an all-in-arrangement, an employee is entitled to a fixed remuneration, irrespective of whether he/she is working normal working hours only or overtime. Any new all-in-arrangement concluded from 1 January 2016 onwards needs to specify the amount of the base salary, i.e. the portion of the overall remuneration relating to normal working hours. We recommend allocating a reasonable amount to the base salary as compared to the overtime portion to minimise the risk of legal challenges.

A non-competition clause will only be valid if it refers to activities within the employer’s line of business, it doesn’t exceed one year and it does not unreasonably impede an employee’s professional career.

In addition, from 29 December 2015 onwards, a non-competition clause will only be enforceable if the remuneration (excluding special payments) payable for the last month of employment is 20 times the daily maximum under the General Social Insurance Act (“ASVG”) (i.e. currently EUR 3,240). Furthermore, any contractual penalty linked to a non-competition clause and agreed from 29 December 2015 onwards must not exceed six times the last monthly net salary (excluding special payments).

Agreements on the reimbursement of training costs concluded after 28 December 2015 are subject to two new restrictions. The maximum commitment period is generally reduced to four (previously five) years and the agreement needs to provide for a proportionate reduction of the reimbursable amount for every month of employment.

Since 1 January 2016, an employer needs to inform part-time employees about any job vacancies in the company involving a higher amount of working time. This can be done by posting a notice at an easily accessible place in the company, by electronic data processing, or telecommunication. The information requirement only applies in case a job vacancy is “advertised”, i.e. externally or internally communicated to more than one person. Any offer addressed to only a single person does not qualify as an “advertisement”. Non-compliance with the information requirement incurs a fine.