Therefore, a flexitime arrangement providing for a maximum daily working time of 12 hours is not only compliant with the new Working Time Act, but also not in breach of the relevant collective agreement setting the limit at 10 hours. The Supreme Court answered the first question in the negative, ruling that a 12-hour flexitime scheme under a plant agreement is valid since the Working Time Act does not expressly authorise the social partners to reduce, by way of a collective agreement, the maximum daily working time from 12 to 10 hours.
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Therefore, the collective agreement could render a specific plant agreement which provided for a maximum 12-hour work day invalid. The Chamber of Commerce (the plaintiff) argued that the collective agreement for the metal workers, which set a daily maximum of 10 working hours for flexitime, contravened the new Working Time Act, which allows for a 12-hour maximum. Finally, the collective bargaining agreement cannot counter the mandatory provisions set out in statutes, such as the Working Time Act. In turn, plant agreements must be no less advantageous than the collective bargaining agreement for the particular industry as concluded between the 'social partners' (ie, the Chamber of Commerce and labour unions). Therefore, the terms of an employment agreement must generally be no less favourable than those set out in a plant agreement between employers and their works council. This decision will have far-reaching consequences for many other industries with similar collective agreements.Īustrian employment law follows a hierarchy of legal sources which mandate that a lower law cannot restrict the rights afforded by a higher law (the favourability principle).
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In the first decision on this issue, the Supreme Court has clarified all relevant questions regarding the collective bargaining agreement for metal workers (OGH, 8 ObA 77/18h). However, it was unclear whether the new statutory regime also overrode collective bargaining agreements that have not been adapted to the new maximum work hours and regularly provide for a daily maximum of 10 working hours for flexitime, in line with the previous statutory framework. This is due to the fact that flexitime schemes exist to level out overtime through phases of reduced working hours over the agreed flexitime period. The new regime also applies to flexitime so that under the new law, and if the specific flexitime arrangement (plant agreement or employment contract) allows, all work hours within the 12-hour daily maximum are deemed standard working hours without any supplements for overtime work. However, the normal daily working time remained at eight hours. In addition, the maximum weekly working time was increased from 50 to 60 hours. As of 1 September 2018, the newly amended Working Time Act increased the maximum daily working time from 10 to 12 hours.