Directive (EU) 2019/1937 ("Whistleblower Directive") was already adopted at the end of 2019. The deadline for transposition into national law ended on 17 December 2021. Austrian legislators have not yet translated the Directive into national law.
After an initial draft bill was presented in the summer, a bill was introduced in the National Council in mid-December 2022, which has since been assigned to the Committee for Labour and Social Affairs. After the Committee for Labour and Social Affairs has deliberated on the bill, it will be brought before the National Council again before being sent to the Federal Council. Thus, there is some likelihood that the current bill will be changed before final adoption.
What is the purpose of the Whistleblower Protection Act?
The main purpose of the Whistleblower Protection Act ("HSchG" being the German abbreviation) is to enable whistleblowers to report violations of law which they became aware of in the course of current or former work relations and to protect them from retaliation. In this context, the act obliges certain enterprises to set up internal whistleblowing hotlines to encourage the reporting of the practices described above. Moreover, the act also provides for the establishment of an external body which whistleblowers can report breaches to.
What are the measures to be taken and until when?
The current draft legislation sets forth that undertakings with at least 50 employees are obliged to set up an effective internal whistleblowing system. The system must, for example, ensure that the identity of the whistleblower remains confidential or that a report can be submitted in writing, orally or anonymously. Furthermore, the follow-up to a report must be transparent - e.g. whistleblowers must be informed about measures which were taken or refrained from no later than 3 months after receipt of the report. The tasks of the internal bodies may also be taken over by a third party, such as a law firm.
Undertakings with fewer than 250 employees must implement the internal whistleblower system by 17 December 2023. Undertakings with more than 250 employees are given a transitional period of 6 months from the date on which the Austrian Whistleblower Protection Act enters into force.
Employment law aspects of the Whistleblower Protection Act?
It is still open how legislators will react with regard to the works council's co-determination rights. Depending on the system design, the introduction of a whistleblower system may constitute a so-called control measure. If this control measure affects human dignity, the works council’s consent will be required (or the consent of the individual employees if the undertaking does not have a works council).
Furthermore, an effective whistleblower protection system must ensure that whistleblowers are protected from retaliation, in particular termination with or without notice or suspension.
What are the sanctions for non-implementation?
Violations of the act are subject to hefty administrative fines - even the mere obstruction of a report or the threat of retaliatory measures is punishable by an administrative fine of EUR 20,000.00, or up to EUR 40,000.00 in the event of recurrence.
What needs to be done?
Even if the Whistleblower Protection Act may still undergo changes - the essential cornerstones have been established. Therefore, undertakings should urgently consider ways to implement the requirements.
Our Employment Law and Data Protection Teams will be happy to support you.