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Staff headcount: crucial thresholds

In this episode of the Arbeitsrecht podcast by Wolf Theiss, Isabel Firneis and Magdalena Ziembicka discuss some of the most important headcount numbers Austrian employers must pay attention to. Under Austrian employment law, certain obligations or legal consequences are only triggered if a certain number of staff is employed in a company.

5 permanent employees or more: employees have the option to elect a works council.  The number of works council members will depend on the business’ size.

5 employees or more: the general protection against dismissal applies. Employees can challenge their dismissal for being unfair, given that dismissal impairs employees’ interests substantially (Sozialwidrigkeit), or due to a proscribed motive (Motivwidrigkeit).

Up to 9 employees: possible lower administrative penalties for wage dumping.

20 employees or more: the works council may demand the conclusion of a social plan in the event of restructuring or a change in operations, which has a negative effect on all, or significant parts, of the workforce.

More than 20 employees: the employer must notify the local Labour Market Service (AMS) of any intended mass dismissals in advance and in writing. The AMS notification triggers a 30-days waiting period during which dismissals are void.

Mass dismissal regulations apply if an employer intends to dismiss at least five employees from a business with more than 20 but fewer than 100 employees; or at least five per cent of staff from a business with between 100 and 600 employees; or at least 30 employees from a business with more than 600 personnel; or at least five employees aged 50 or older from any business regardless of its headcount.

21 employees or more: parents of children up to the age of seven are entitled to parental part-time, provided employment has lasted at least three years. Qualified employees can unilaterally enforce either a reduction in working time or a change in working hours from the employer – (i.e., the employer may not object to the reduction itself). Between the request for and the duration of part-time work, (but no longer than until the child’s 4th birthday), employees enjoy special protection against dismissal. Employees in smaller businesses do not have the same entitlement, but may file a lawsuit against the employer to agree to a parental part-time agreement.

25 employees or more: companies are obligated to employ one disabled person with at least 50% degree of disability for every 25 employees. If this employment obligation is not fulfilled, the employer will be charged a compensation tax by the Social Ministry Service.

50 employees or more: employers are obligated to set up an internal reporting channel for employees to report violations of certain areas of law, according to the new Whistleblower Protection Act. The Act provides for protection of whistle-blowers against retaliatory measures. Companies that employ 250 or more workers must introduce reporting channels by 24 August 2023. Companies with 50 to 249 employees will have until 17 December 2023 to do so.

150 employees or more: the works council has a right to demand that one of its members be completely released from work duties, on a fully paid basis, to focus on performing works council activities.

150 employees or more: every two years, employers must prepare an anonymous report regarding pay levels aggregated by gender, in order to ensure gender equality.