The recent ruling of the European Court of Justice (ECJ) on the Good Friday regulation in the Austrian Labour Rest Act (Arbeitsruhegesetz, ARG) has triggered vehement discussions. In response, the parliamentary session of 27 February 2019 introduced a "personal holiday" for all with a view to achieving a legal situation in conformity with EU law.
The previous provision of Article 7 (3) ARG granted a paid holiday on Good Friday to members of the Protestant Church of Augsburg (Lutheran) and Helvetic (Reformed) Confessions, of the Old Catholic Church and of the United Methodist Church. If a member of any of these churches worked on a Good Friday, they were entitled to double pay, whereas employees of other (or no) religious confessions had to work normal hours rather than enjoying a paid holiday.
An employee who was not a member of any of the above churches felt discriminated against by this rule, referring to the Employment Equality Directive (2000/78/EC) and demanding double payment for working on Good Friday. The court of first instance rejected the claim, while the appellate court awarded the plaintiff double pay. The Supreme Court was concerned that the special entitlement for members of certain churches might be discriminatory and submitted the case to the ECJ for a preliminary ruling.
The ECJ found that Article 7 (3) AG constituted an act of direct discrimination on the grounds of religion. The court denied any justification for such discrimination because the ARG regulation at issue was not necessary to protect religious freedom. After all, the regulation grants employees who are members of any of the said churches a 24-hour leave from work on Good Friday while employees of other religions whose holidays do not concur with the ARG holidays may not leave their work in order to practise the religious rights pertaining to such holidays except with their employer's consent within the scope of the employer's duty of care. The relevant ARG provisions thus exceed what is necessary to compensate for an assumed discrimination and treat employees with comparable religious duties differently.
As regards the consequences, the ECJ noted that, for as long as legislators fail to ensure conformity with EU law, employers need to grant employees the right to a paid holiday on Good Friday provided that the latter have informed their employer of their desire not to work on Good Friday. Such employees thus are also entitled to double pay if the employer rejects their application not to work on Good Friday.
Legislators' response: Good Friday holiday is cancelled
In response to the ECJ judgment, a discussion ensued on several alternatives for achieving a non-discriminatory regulation. Proposals ranged from a "half" holiday to a public holiday for all on Good Friday.
The – highly disputed – decision arrived at completely cancels the previous Good Friday regulation. As of now, Good Friday is no longer a holiday, for anybody. Instead, the new Section 7a ARG allows all employees to take a day of their own choice off from their quota of paid holidays once every holiday year ("personal holiday"), provided that they inform the employer in writing at least three months in advance of the desired date. For 2019, a special regulation applies that employees can choose their personal holiday within three months of the new regulation entering into force and without regard to the deadline, on condition that they inform their employer not later than two weeks in advance.
The "personal holiday" may be consumed at any day of the year; no religious background is necessary. Nevertheless, it does not grant an additional holiday, but employees need to take one day of their own holiday quota.
If so asked by the employer, employees are free not to consume their personal holiday and work instead. In this case, employees still have a day off and can claim extra holiday pay in addition to the pay for their work. However, they cannot choose another personal holiday in the same holiday year.
Interference with the general collective bargaining agreement
By interfering with the general collective bargaining agreement applicable since 1952 (and several other collective bargaining agreements), legislators triggered irritated discussions: Section 33a (28) ARG now explicitly states that provisions in standards of collective rules which provide special Good Friday regulations only for employees who are members of one of the four churches are ineffective and no longer permissible. Whether this interference with the constitutional right to establish trade unions is permissible and will withstand the rulings of the ECJ and ECHR remains to be seen.
The regulation providing for employees themselves to choose a paid day off (strangely enough written into the ARG) leaves several issues unsettled. Other than provided in the Austrian Paid Holiday Act, employers have little say regarding the choice of date. The question thus is how employers can ward off the abusive use of a "unilateral" right to take a day off, as would be the (extreme) case when all or a majority of employees take their personal holiday simultaneously so that operations would come to a standstill. It is also unclear whether employees can interrupt existing shift or employment schedules by their unilateral choice and how employers should fill up gaps in shifts. Moreover, the new regulation does not touch upon the Yom Kippur provision in the general collective bargaining agreement, so that this issue, which is identical with the Good Friday problem, can sooner or later be expected to find its way to the ECJ.
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