Austria / Austrian Supreme Court / 8 ObA 20/12t (a) Österreichischer Gewerkschaftsbund (b) Verband Österreichischer Banken und Bankiers

Key facts of the case:

§ 22 of the collective bargaining agreement for employees of banks and bankers (Kollektivvertrag für Angestellte der Banken und Bankiers) grants to employees within its scope the right to receive a children allowance (Kinderzulage) upon the fulfilment of certain prerequisites. Part-time employees only receive an aliquot amount in relation to their working time.

Paragraphs referring to EU Charter: 


Is Article 28 of the Charter to be interpreted in a way that all provision in the collective bargaining agreement in connection with a specific matter (in the present case: the children allowance) would be void in case of the voidance (pursuant to national praxis) of only one detailed regulation (which infringed the principle of non-discrimination under Union law) in a collective bargaining agreement (in the present case: the aliquot splitting of a children allowance) within a labour law systems, in which essential parts of its minimum standards are dependent on the shared view of specially selected and qualified collective bargaining agreement partners [Kollektivvertragsparteien]. The case law of the ECJ recognises that the social partners [Sozialpartner] have paid attention to finding a balance between their respective interests (ECJ C-297/10 and C-298/10 margin note 66) in pursuing their fundamental right to collective bargaining according to Article 28 of the Charter. This means that a generous standard of review has to be applied in evaluating the adequacy and effectiveness of measures under collective bargaining agreements. In case of doubt, the common socio-political evaluation expressed in a provision of the collective bargaining agreement constitute an objective justification within the meaning of § 4 n°1 of the framework agreement attached to Directive 97/81/EC. Article 28 of the Charter sets out the right of employees and their employers, or their respective organisations, to negotiate and conclude collective bargaining agreements at the appropriate levels. The term ‘collective bargaining agreement’ comprises all sorts of collective agreements as may be admitted under domestic law (Riedl in Meyer, Charta der Grundrechte der EU, Art 28, margin note 22). The case law of the ECJ also confirms that, pursuant to Article 28 of the Charter in connection with Article 52 para 6 of the Charter, the protection of the fundamental right to collective bargaining needs to fully take into account domestic laws and customs. To only void the provision considered by the applicant could impair the efficiency of collective bargaining law and thus also contravene the fundamental law to collective bargaining as set out in Article 28 of the Charter which is characterized by the idea of negotiation and settlement.

Deciding body (original language): 
Oberster Gerichtshof