Graf & Pitkowitz Rechtsanwalte GmbH updates

Competitive actions by employees through intermediaries: imputation of liability and restrictive covenants
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 04 November 2020

Under Section 7 of the Employment Act, employees cannot, while employed and without their employer's consent, operate a commercial business or conclude commercial transactions in their employer's line of business. In a recent case, the Supreme Court had to decide whether the statutory prohibition also covers such competitive actions by employees through intermediaries or whether only the employees themselves have the standing to be sued by their employer.

Supreme Court scrutinises admissibility of videoconference hearings
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 29 October 2020

The Supreme Court recently determined the admissibility of conducting an arbitral hearing by means of a videoconference in the context of challenge proceedings. The court held that even where one party opposes, ordering a remote hearing in arbitration is admissible and does not constitute a reason to challenge the arbitral tribunal. This decision must be regarded as a precedential landmark decision as it appears to be the first decision of any supreme court worldwide to tackle this issue.

Supreme Court specifies reasoning standards for awards
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 08 October 2020

Under longstanding Supreme Court case law, defective reasoning did not previously constitute a severe enough violation of procedural public policy to set aside an award. However, in recent years, the court has reversed this trend and repeatedly held that non-adherence to certain reasoning standards in arbitral awards can be a ground to set aside an award. In a recent decision, the Supreme Court has provided further guidance on the required reasoning standards for awards.

Supreme Court rules on compensation for illegal GPS tracking
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 16 September 2020

The Supreme Court recently ruled for the first time on the issue of whether GPS tracking without an employee's consent warrants compensation for immaterial damage. Employers that use GPS tracking systems or similar control measures to monitor their staff should ensure that they agree the system's introduction with the works council or have each affected employee expressly consent to such a measure if no works council has been elected.

Supreme Court rules on formal requirements for dismissal challenge
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 22 July 2020

The Supreme Court recently clarified the legal implications of one particular scenario of dismissal challenges: if a works council expressly objects to an employee's dismissal (as opposed to expressly consents or fails to make a statement), the right to challenge the dismissal rests with the works council, but only if the employee, within one week of such objection, requests the works council to act accordingly and file a lawsuit.

Supreme Court scrutinises decision awarding costs to losing party
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 16 July 2020

The Supreme Court recently considered whether a final arbitral award on the reimbursement of costs violated Austrian public policy. The claimant had ultimately succeeded in the arbitration conducted under the rules of the International Court of Arbitration of the International Chamber of Commerce. Nevertheless, the cost decision ordered it to reimburse the respondent's costs. The Supreme Court dismissed the claimant's request to set aside the cost decision.

Continued remuneration during COVID-19 pandemic
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 13 May 2020

The COVID-19 pandemic has caused employers to use various methods to support employees and maintain business performance. Old and new legal remedies provide for continued payment of salaries (and in some cases also corresponding grants to employers) if performance of work is impossible. This article outlines the routes that employers and employees can take where normal working is impossible, such as sick leave and care leave to look after sick children.

COVID-19: short-time work
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 06 May 2020

Austria pioneered short-time work schemes. Introduced in 1949 and overhauled in 2008 and 2009 during the financial crisis, the Austrian short-time work scheme has recently been further adapted to the particular needs of the COVID-19 crisis. This article examines who is eligible for the short-time work scheme and what subsidies are available.

COVID-19 measures may entitle tenants to rent reductions
Graf & Pitkowitz Rechtsanwalte GmbH
  • Real Estate
  • Austria
  • 03 April 2020

In an effort to reduce the spread of COVID-19, the government has ordered all shops and service providers, except those providing certain vital services, to close to customers from 17 March 2020 until 13 April 2020. The closure of shops may entitle tenants to reduced rent and ancillary costs. However, it does not entitle tenants to terminate their lease for cause. This article sets out guidance for affected tenants and landlords.

Collective agreements trump Working Time Act
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 18 March 2020

Following amendments to the Working Time Act, it was unclear whether the new statutory regime regarding working time overrides collective bargaining agreements that have not been adapted to the new maximum work hours and provide for a daily maximum of 10 working hours for flexitime. In the first decision on this issue, which will have far-reaching consequences, the Supreme Court has clarified all relevant questions regarding the collective bargaining agreement for metal workers.

Supreme Court takes strict stance on conflict of interest
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 16 January 2020

The Supreme Court recently considered whether the fact that an arbitrator and a party counsel in one arbitration acted as co-counsel in another unrelated arbitration cast doubt on the arbitrator's independence and impartiality and thus disqualified him from acting as arbitrator in the arbitration under review. In its decision, the court correctly acknowledged the reality of the Austrian arbitration scene, which results in frequent contact between practitioners.

Gig economy un-gigged: collective bargaining agreement for bike couriers
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 18 December 2019

From 1 January 2020, bike couriers' employment relationships will be governed by a newly enacted collective bargaining agreement. Bike couriers in Austria now enjoy rights and benefits which are similar to employees in other sectors. While this is good news for bike couriers, it remains to be seen whether customers will have to pay the bill because of increased prices for courier services.

Supreme Court redefines location surcharge in rent control leases
Graf & Pitkowitz Rechtsanwalte GmbH
  • Real Estate
  • Austria
  • 18 October 2019

In early 2019 the Supreme Court passed three decisions confirming and clarifying its 2017 decision which had limited landlords' right to request a location surcharge for rent-controlled apartments in desirable neighbourhoods. Based on the court's judgment, approximately 100,000 apartments no longer qualify for the location surcharge. However, the court's vague criteria for determining whether a neighbourhood is considered above or below average leave scope to include additional indicators.

Teachers and brothels
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 02 October 2019

The Supreme Court recently confirmed an appellate court's decision and ruled that a school teacher who had moonlighted as a brothel manager had been eligible for termination because this sort of behaviour could be considered a breach of trust and damaging to the school's reputation. The case was eventually decided in view of the perceived criminality of sex workers and their employers among the general public. However, this perception arguably depends on who is asked.

New 'daddy month' strengthens paternal bonding early on
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 31 July 2019

Parliament recently passed a new law that grants fathers a legal entitlement to one month off work following the birth of their child. Dubbed the 'daddy month' by the media, this entitlement seeks to fill a gap that puts fathers at a disadvantage when it comes to childcare immediately following the birth of their child.

Supreme Court evaluates hybrid arbitration agreement
Graf & Pitkowitz Rechtsanwalte GmbH
  • Arbitration & ADR
  • Austria
  • 18 July 2019

The Supreme Court recently considered the validity of a hybrid arbitration agreement which provided for the formation of a tribunal under the International Chamber of Commerce Rules of Arbitration to arbitrate at the Vienna International Arbitral Centre. In this context, the court also considered the consequences of violating procedural rules agreed by the parties and the tribunal's failure to issue a reasoned award.

Vienna Building Code: new provision renders short-term letting illegal
Graf & Pitkowitz Rechtsanwalte GmbH
  • Real Estate
  • Austria
  • 31 May 2019

A new provision in the Vienna Building Code recently entered into force, rendering short-term letting – including through rental services such as Airbnb – illegal in large areas of Vienna. Further, under the new provision, all parts of residential zone buildings that were being used for residential purposes when the provision entered into force – or were built thereafter – may be used only for residential purposes. That said, the new provision may be unconstitutional.

Supreme Court on hairstyles and discrimination
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 08 May 2019

An employee recently sued for damages and compensation for gender discrimination when his job application was rejected because he had long hair. Originally unsuccessful, when the employee learned that the defendant's employee handbook contained rules on employees' outer appearance, he sued again and succeeded, as the Supreme Court found that the employee handbook was prima facie evidence of gender discrimination.

ECJ rules on Austria's Good Friday dilemma
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 27 February 2019

The European Court of Justice advocate general recently confirmed that the Austrian regulation which sets out that Good Friday is a paid public holiday only for members of four specific churches is discriminatory. Further, the advocate general concluded that each affected employee could claim holiday pay for past periods, unless such claims were already time barred, in which case claims could be brought against the Austrian state.

Strikes and right to strike
Graf & Pitkowitz Rechtsanwalte GmbH
  • Employment & Immigration
  • Austria
  • 12 December 2018

It is widely understood that the Austrian concept of 'social partnership' (ie, the system for cooperation between the two sides of industry) has largely contributed to peaceful industrial relations. The social partnership recently agreed on a new collective bargaining agreement for the metal industry. However, negotiations in several other trades and industries have followed, and in a less constructive atmosphere, further strikes may be forthcoming.

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