In its decision of March 24, 3033, 9 ObA 116/21f, the Supreme Court commented on whether or not the notice periods for workers in the hotel and catering industry that deviate from Section 1159 ABGB are still valid.
The collective agreement for workers in the hotel and catering industry provides for a 14-day notice period.
On October 1, 2021, Section 1159 ABGB (as amended by Federal Law Gazette No. 153/2017) came into force, aligning the notice periods for blue-collar and white-collar workers. Accordingly, employers of employees must also observe a notice period of six weeks to five months to the end of the quarter, depending on the number of years of service. The 15th or the last day of the month can be contractually agreed as the termination date.
In the last sentence of Section 1159 (2) ABGB, the legislator has provided that deviating regulations can be stipulated by collective agreement for industries in which seasonal operations within the meaning of Section 53 (6) ArbVG predominate (e.g. construction industry). The trade associations for the hotel and catering industry in the Austrian Federal Economic Chamber were of the legal opinion that the hotel and catering industry was also considered a seasonal industry within the meaning of the statutory provision and therefore the 14-day notice period (without restriction to fixed termination dates) was still applicable according to the collective agreement. The trade union disagreed and the social partners were unable to reach an agreement through negotiations. The hospitality industry associations therefore filed an application for a declaratory judgment with the Supreme Court (Section 54 (2) ASGG) in order to create legal certainty on the issue of termination regulations.
The Supreme Court found that existing collective bargaining termination provisions for workers at the time of entry into force do not lose their validity if they comply with the requirements of the new statutory authorization.
However, it came to the conclusion that the hotel and catering industry is to be regarded as a uniform industry, but not as an industry in which seasonal businesses predominate. Seasonal businesses are businesses“which, by their nature, operate at certain times of the year” or which“regularly work significantly more at certain times of the year”. It is true that there are hotels and restaurants that meet these requirements. However, the data presented by the Chamber of Commerce did not show that seasonal businesses predominate in terms of numbers.
The application by the Austrian Federal Economic Chamber (catering and hotel trade associations) for a ruling that the termination rule contained in the collective agreement for workers in the hotel and catering industry (Section 21a), according to which (after the end of the probationary period) the permanent employment relationship can only be terminated after 14 days’ notice, is effective beyond September 30, 2021, was rejected by the Supreme Court. Since the decision does not depend on the individual business, but only on whether seasonal businesses as a whole are in the majority, it applies to the entire industry.
The Supreme Court held that the facts presented by the applicants do not yet allow the conclusion that the hotel and catering industry covered by the nationwide scope of the present collective agreement within the meaning of Section 1159 of the Austrian Civil Code (ABGB) is dominated by seasonal businesses and that the factual requirements for the authorization under the collective agreement are therefore met. It is to be expected that the Chamber of Commerce will collect further data and attempt to provide such proof after all. For the time being, however, a minimum notice period of six weeks applies to workers in the catering and hotel industry(OGH 24.3.3033, 9 ObA 116/21f).
Sources:
Schrenk, Harmonization of the termination provisions, ögswissen 2022 H 1, 16