Among other things, the Austrian Whistleblower Protection Act (HSchG) aims to protect whistleblowers from retaliations by their employers (see also https://www.kwr.at/en/news/whistleblower-protection-act-adopted-by-the-national-council ).
Who is protected by the Whistleblower Protection Act?
Under Austrian legislation, whistleblowers are defined to include workers, applicants, trainees, freelancers or civil servants.
For example, if a worker files a justified report about an unlawful act in the workplace, the employer could take measures under employment law. For example, the employer could terminate the worker’s contract or order a transfer in order to deliberately disadvantage him/her. In the context of whistleblowing, such retaliatory measures are deemed to be legally invalid. Moreover, whistleblowers are entitled to damages.
Note for practical application: In judicial or administrative proceedings, whistleblowers affected by such measures have to furnish prima facie evidence to show that a measure was taken in retaliation for whistleblowing. Employers have to furnish prima facie evidence that another reason was decisive for measures taken.
What is the role of the works council in whistleblowing and whistleblower protection?
It is open to questions and hotly debated whether, what and to what extent the works council “has a say” in the introduction of a whistleblower system. The HSchG does not contain any provision on this. In this context, the provisions of the Labour Constitution Act (ArbVG) and the the Act amending the Employment Contracts Act (AVRAG) must be observed and complied with.
According to the principles already in force, the works council's consent is required if control measures affecting human dignity are introduced. Whether the introduction and operation of a whistleblower system constitutes such a control measure is currently assessed differently by different authorities.
One view is that no control measure is put in place because the employer must comply with legal provisions. It is the HSchG which obliges the employer to introduce a whistleblowing system. The contrary view is that it is important for the employer to have an option of objective control within the framework of the whistleblowing system. Since employees may report alleged breaches of legislation at any time, this can lead to a constant feeling of surveillance in the enterprise, and this in turn would constitute a control measure.
At present, the prevailing view is that human dignity can (only) be deemed affected if the implementation of the whistleblowing system goes beyond the framework of the HSchG. This could be the case if the employer provides for further reporting options above and beyond those provided for in the HSchG. However, if the employer operates within the framework of the HSchG, the current predominant opinion is that human dignity is not affected and that the works council's consent is not required. Similar considerations and views are expressed with regard to the question of whether the consent of the works council is required if the whistleblowing system is designed in a form involving electronic data processing, which means plans to introduce a computerised system to process workers’ personal data.
Of course, it cannot be ruled out that a court will take a different view.
Outlook for practical implementation
Whistleblowers are afforded particular protection under the HSchG. When it comes to functioning compliance, there is a need to ensure that whistleblowers are really given such protection. Training is recommended for managers and especially for persons who are entrusted with running the whistleblowing system in-house.
At present, it is not possible to make a clear statement about whether and when the consent of the works council is required for the introduction of a whistleblowing system. According to the currently prevailing view, it can be assumed that no consent of the works council will be required for the introduction of a whistleblowing system as long as the employer remains within the limits of the HSchG provisions.
The KWR Employment Law Team will be glad to support you in all matters relating to whistleblowing.