Observation (CEACR) - adoptée 1995, publiée 83ème session CIT (1996)

The Committee notes the information supplied by the Government in its reports.

Referring to the comments that it has been making for many years concerning the need to extend the protection against unlawful dismissals (especially for trade union activities) to workers in enterprises with fewer than five employees, the Committee notes with satisfaction that the Supreme Court, in its ruling of 11 August 1993, 90bA 200/93, pronounced that section 879 ABGB which stipulates that "A contract which contravenes a statutory prohibition or the moral law is null and void ..." was also applicable to unilateral transactions and hence to dismissals. Thus, according to this ruling, the dismissal of an employee of an enterprise not subject to the establishment of a works council (enterprises with fewer than five employees) on account of trade union activities (a so-called "motivated" dismissal - Motivkündigung) is, according to section 879 ABGB, null and void, being a contravention of the moral law.