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Strike as grounds for dismissal?

Work­ers’ strikes are a very un­com­mon oc­cur­rence in Aus­tria – hardly any other European coun­try has as few strikes as Aus­tria. Among law schol­ars, the opin­ion has pre­vailed for many years that it was ac­cept­able to fire em­ploy­ees for go­ing on strike. In her re­search, El­isa­beth Brame­shuber from WU’s In­sti­tute for Aus­trian and European Labor Law and So­cial Se­cur­ity Law shows clearly that while this in not, in fact, the case, not every type of strike is per­miss­ible. The legal status of ser­vice pro­viders in the so-c­alled “gig economy,” where small-s­cale jobs are often dis­trib­uted to a large num­ber of freel­ance con­tract­ors, re­mains un­clear. This ap­plies espe­cially to com­pan­ies like Foodora or Uber.

In in­ter­na­tional com­par­ison, strikes are highly un­com­mon in Aus­tria. Ex­cept for the metal­work­ers’ strike in 2011, Aus­trian work­ers ac­cu­mu­lated less than one “strike minute” per worker and year over the last ten years. For dec­ades, most Aus­trian labor law ex­perts have main­tained that em­ploy­ees can be fired for go­ing on strike. In her cur­rent work, however, WU re­searcher El­isa­beth Brame­shuber from the In­sti­tute for Aus­trian and European Labor Law and So­cial Se­cur­ity Law has dis­proven this stand­point. The European Union’s Charter of Fun­da­mental Rights, in ef­fect since 2009, defines the right to strike as a basic right, and the European Con­ven­tion on Hu­man Rights has re­cently been in­ter­preted in this dir­ec­tion as well. “Ac­cord­ing to the Charter of Fun­da­mental Rights, strike law res­ults from the ‘con­sti­tu­tional tra­di­tions com­mon to the Mem­ber States,’” says El­isa­beth Brame­shuber.

Strike law with lim­it­a­tions

Work­ers are per­mit­ted to strike to main­tain or im­prove cer­tain work­ing con­di­tions, for example for higher wages. Dur­ing such a strike, em­ploy­ees are not ob­lig­ated to work. If an em­ployee is dis­missed for not work­ing dur­ing such a strike, that is a vi­ol­a­tion of his or her fun­da­mental right to strike. However, it is not per­miss­ible to strike against the em­ployer’s gen­eral so­cio-­polit­ical at­ti­tudes, or to go on strike be­fore all ne­go­ti­ation op­tions have been ex­hausted, as a strike is con­sidered a last-re­sort ac­tion, an “ul­tima ra­tio.”

Strikes as a bar­gain­ing chip

“Close to 98% of all em­ploy­ment re­la­tion­ships in Aus­tria are sub­ject to col­lect­ive bar­gain­ing agree­ments. Min­imum wages are usu­ally re-ne­go­ti­ated twice a year. In this con­text, strikes, or the threat of strikes, can be used to put pres­sure on ne­go­ti­ation part­ners – as happened in 2013 dur­ing the fall wage ne­go­ti­ation ses­sions for metal­work­ers, for example,” the legal ex­pert ex­plains. “Know­ing that em­ploy­ees who make use of their legal right to go on strike can­not be fired for it en­sures that min­imum wage ne­go­ti­ations for col­lect­ive bar­gain­ing agree­ments can be held eye to eye, and means that work­ers are not re­duced to col­lect­ively beg­ging for ad­equate wages.”

Un­cer­tainty for atyp­ical em­ploy­ment re­la­tion­ships

It is still un­clear whether con­tract­ors in the so-c­alled “gig economy,” for example Uber drivers or people work­ing for food de­liv­ery ser­vices like Foodora, have a fun­da­mental right to col­lect­ive bar­gain­ing and there­fore the right to strike. This de­pends on whether or not they are clas­si­fied as em­ploy­ees, ex­plains Brame­shuber, who has been in­vest­ig­at­ing this is­sue in her latest re­search. Aspects of com­pet­i­tion law need to be taken into con­sid­er­a­tion as well: Col­lect­ive bar­gain­ing agree­ments in­ten­ded to dir­ectly pur­sue so­cio-­polit­ical goals, espe­cially reg­u­la­tions on em­ploy­ment and work­ing con­di­tions, are ex­cluded from the anti-­car­tel rules defined un­der Union law. This means that the car­tel­iz­a­tion of work­ing con­di­tions res­ult­ing from col­lect­ive bar­gain­ing agree­ments may not be in vi­ol­a­tion of antitrust law un­der cer­tain con­di­tions. Antitrust reg­u­la­tions are meant to pre­vent trade dis­ad­vant­ages and the restric­tion or adul­ter­a­tion of cross-bor­der com­pet­i­tion. Just re­cently, the European Court of Justice in Lux­em­bourg de­cided that this ex­cep­tion from the anti-­car­tel reg­u­la­tions for col­lect­ive bar­gain­ing agree­ments does not ap­ply if a union of the self-em­ployed con­clude a col­lect­ive bar­gain­ing agree­ment with the pur­chasers of the ser­vices provided by the self-em­ployed per­sons.

The re­searcher

El­isa­beth Brame­shuber is an assist­ant pro­fessor at WU’s In­sti­tute for Aus­trian and European Labor Law and So­cial Se­cur­ity Law, and is cur­rently work­ing on her hab­il­it­a­tion thesis on the topic of em­ploy­ees’ due di­li­gence. Be­fore com­ing to WU, she worked as an as­so­ci­ate in the law of­fice of Herbst Kin­sky. Cur­rently, her re­search fo­cuses mainly on em­ploy­ment con­tract law and its con­nec­tions to gen­eral civil law, on the field of fun­da­mental rights in labor law, on the law of col­lect­ive em­ploy­ment re­la­tion­ships with a spe­cial fo­cus on col­lect­ive labor law aspects of “Work 4.0,” and on the area of man­dat­ory in­sur­ance for the self-em­ployed, espe­cially with regard to tax law is­sues. In 2014, Brame­shuber, a nat­ive of Graz, was awar­ded an in­cent­ive award by the Dr. Maria Schau­mayer Found­a­tion for her dis­ser­ta­tion on Aus­trian in­dus­trial ac­tion law un­der the Treaty of Lis­bon; she also re­ceived the Leo­pold Kun­schak Award for her dis­ser­ta­tion in 2015. In the same year, her dis­ser­ta­tion re­ceived an hon­or­able men­tion by the jury for the Young Aca­dem­ics’ Science Prize awar­ded by the Min­istry of La­bour, So­cial Af­fairs and Con­sumer Pro­tec­tion.

Anna Maria Schwendinger
phone: + 43-1-31336-5478
email: anna.schwendinger­

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