Jakob Widner July 6 2016 Quest for another public holiday GRAF ISOLA Rechtsanwälte GmbH | Employment & Immigration - Austria Jakob Widner Employment & Immigration OverviewFactsDecisionsCommentIn a recent decision(1) with potentially far-reaching consequences, the Court of Appeals for the Vienna Circuit ruled that a peculiar provision in the Act on Rest Periods violates EU law and must therefore be disregarded by the Austrian courts. The court of appeals gave leave to appeal to the Supreme Court. If the Supreme Court hears the case and upholds the court of appeal's decision, Austrian employees may soon celebrate yet another public holiday.OverviewThe Act on Rest Periods provides for mandatory holidays on 13 specified calendar days spread over the year, including New Year's Day, Easter and Whit Monday, Labour Day and Austrian National Day on October 26. Although these holidays have historically been motivated by religious influences, they are afforded to all employees, regardless of religion or belief.A separate paragraph of the act adds a 14th public holiday on Good Friday, but only for members of the Evangelical Church Augsburg Confession, the Evangelical Church Helvetic Confession, the Old Catholic Church and the Evangelical Methodist Church.FactsThe plaintiff, who was not a member of any of the aforementioned churches, worked full time on Good Friday 2015 and sued his employer for €109.09 gross pay as holiday remuneration.He claimed that providing only members of the four churches with the extra holiday violated the EU Employment Equality Framework Directive (2000/78/EC) and Article 21 (non-discrimination) of the EU Charter of Fundamental Rights (2000/CE 364/01).DecisionsWhile the district court dismissed the claim, the court of appeals reversed. Citing the directive's prohibition on direct discrimination, the court first argued that discrimination based on religion or belief also includes cases where an employee is treated unfairly because he or she does not practise a set religion, and further reasoned that the directive is not aimed at protecting religion or worship as such, but instead seeks to prohibit any biased treatment based on religion.The court of appeals correctly highlighted that legal scholars have unanimously held that Good Friday – which benefits only the members of four religious creeds – is incompatible with EU legislation banning discrimination. While members of the four churches are afforded an additional fully paid holiday, the vast majority of employees are denied the same benefit solely based on their beliefs or non-religious ideology. There is no factual justification that would warrant a differentiation between members of those four churches and other religious or non-religious creeds. Even if this special treatment were viewed as compensation for disadvantages suffered by a religious minority, it prompts discrimination against other religious minorities, such as Jews and Muslims.Since the ban on discrimination under the directive does not foster a right to practise religion or worship during working time, it cannot be argued that members of the four churches would require legislation to safeguard religious worship. In the absence of such an objective, the statutory provision amounts to direct discrimination based on religion.The court of appeals then explained that according to Article 18, the directive should have been transposed into national law by December 2 2003. However, since the respective provision of the Act on Rest Periods violates the directive, it clearly has not been effectively implemented in Austria to date.This is where the EU Charter of Fundamental Rights comes into play, as discrimination based on religion or belief is also banned under Article 21(1) of the charter. Referring to European Court of Justice case law, the court of appeals reasoned that the ban on discrimination and the principle of equal treatment directly apply to private individuals, even where the directives have not yet been fully transposed into national law. In such cases, the national courts must disregard provisions within national law that conflict with the directives.Consequently, the court found the statutory provision which denotes Good Friday as a public holiday only for members of the four churches to be unenforceable. Instead, this holiday must be granted to all employees, irrespective of religion or belief. As a result, the plaintiff's claim for compensation was upheld.CommentShould the Supreme Court confirm this decision – which appears likely – a clarifying statement by the Austrian legislature would be welcome. First, however, Austrian employees are likely to rejoice over a 14th public holiday, while employers will complain that Austria will grind to a halt for yet another public holiday, costing them millions and stalling productivity.One legal scholar has already suggested that instead of having all Austrian employees celebrate this public holiday on Good Friday, they should be able to take additional time off on their birthday (or the day after if their birthday falls on a Sunday or another public holiday). With such a system in place, a countrywide standstill could be avoided, while employees would still be entitled to an additional public holiday.For further information on this topic please contact Jakob Widner at Graf & Pitkowitz Rechtsanwälte GmbH by telephone (+431 401 17 0) or email ([email protected]). The Graf & Pitkowitz website can be accessed at www.gpp.at.Endnotes(1) OLG Wien 29.3.2016, 9 Ra 23/16t.