15.07.2021
In its decision of March 24, 2021, AZ 9 ObA 14/21f, the Supreme Court ("OGH") dealt with whether an employee has a general right of objection to the transfer of his employment relationship to the purchaser in the context of a transfer of business. The Supreme Court denied this, as it had done in the past (8 Oba 41/10b, 9 Oba 72/12x), and assumed that the Austrian regulation in Section 3 AVRAG complied with the requirements of the Transfer of Undertakings Directive 77/187/EEC.
A transfer of business in the sense of employment contract law occurs when a company, a business or a part of a business is transferred for a fee or free of charge. According to case law, this can occur when a business is sold as a so-called "asset deal" (i.e. as a purchase agreement for individual assets), when ownership is transferred free of charge (usually as a gift between relatives) or as part of a change of tenant. The decisive factor is that an existing organizational structure with operating resources and customer base is continued, which is why such a transfer of business can also occur, for example, when a gas station lease is put out to tender or when the operation of a university cafeteria or canteen is taken over.
From the perspective of the purchaser (as the new employer), it should be noted that he enters into the employment relationships existing at the time of the transfer with all rights and obligations. The purchaser therefore generally assumes all obligations and must meet all claims of the employee that the employee has acquired in the past. The employment relationship is transferred and the employee cannot, in principle, object to this. The only exception to this is (Section 3 Paragraph 4 AVRAG) if the purchaser does not accept the collective agreement protection or the company pension commitments (which the new employer is entitled to do!). Only in this case can the employee object within one month and then his employment relationship remains in principle with the seller.unchanged.” In addition, if the new collective agreement and the new works agreements result in a significant deterioration in working conditions, the employee (Section 3 Paragraph 5 AVRAG) can terminate the employment relationship within one month, in compliance with the statutory or collective agreement notice periods and dates. He is then entitled (despite voluntary termination!) to the same claims as if the employer had terminated the employment relationship.
In its current decision, the Supreme Court has stated that these restrictions are not unconstitutional. The fact that employees can only object to the transfer of their employment relationship to a new employer within narrow limits is not objectionable from a fundamental rights perspective and is therefore not unconstitutional. The Supreme Court is thus taking into account the interests of the "new" employer in that the employment relationships of the employees working in the respective company remain unchanged, i.e. remain assigned to the same economic unit.
This simplifies the transfer of a business. Employees can only object to the transfer of their employment relationship if their essential interests are violated.