For the first time since 1952, this year, Good Friday on the 19thApril was not a public holiday for employees who are members of the Evangelical Churches of the Augsburg or Helvetic Confessions, the Old Catholic Church or the United Methodist Church in Austria. In response to the CJEU’s judgement (C-193/17), the Austrian legislator has completely dropped Good Friday as a public holiday and introduced a ‘personal holiday’ for all employees instead.
Under Austrian law, Good Friday had been a public holiday only for members of one of the four Churches mentioned above. They were entitled to a day off or compensation if they worked on Good Friday. 13 other paid public holidays applied to all employees, irrespective of their religion. As reported in the previous blog, in January 2019, the CJEU (C-193/17) held that the Good Friday legislation constituted direct discrimination on grounds of religion within the meaning of Article 21(1) of the Charter of Fundamental Rights and Article 2(2) of the Employment Equality Framework Directive.
The CJEU judgement put the Austrian legislator under considerable pressure to introduce new non-discriminatory legislation. Eleven different solutions had been proposed. They ranged from introducing a 14th public holiday on Good Friday for all employees irrespective of their religious affiliation (levelling-up) to abolishing the 14thpublic holiday for all employees, including the members of the four Churches (levelling-down).
In February 2019, the Austrian government first announced that it would introduce a ‘half public holiday’ and give all employees the afternoon off (from 2.00pm) on Good Friday. However, this solution attracted criticism from the members of the four Churches since it would put them in a worse position than before. They would not be able to practice religion freely and attend church services in the morning. Employees’ as well as employers’ representatives were also opposed to the envisaged solution.
Therefore, a few days later the Austrian government changed its proposal. The parliamentary session on the 27th February 2019 introduced a ‘personal holiday’ for all employees. This means that all employees can choose one day a year as a holiday and use it for religious festivals or for any other purpose. However, this day off will be deducted from the employees’ paid leave quota. The main difference from the other paid holidays under Austrian law is that employers must grant the employee a day off on a desired day, whereas for the other paid holidays the employer and employee must agree on which days the employee may take his or her days off. Furthermore, the employee must inform the employer in writing at least three months in advance of the desired date. If the employer asks the employee not to consume the ‘personal holiday’ and work instead, the employee is free to do so. If the employee chooses to work, he or she is entitled to double pay, but cannot take another ‘personal holiday’ in the same holiday year.
For employees who are members of one of the four Churches, the new legislation means that they have lost their 14th public holiday on Good Friday. Hence, the new legislation has received heavy criticism and unsurprisingly, the struggle is not over yet. Two main issues remain open at the European level and might find their way to the ECtHR and/or the CJEU. First, the new law interferes with the general collective agreement applicable since 1952 and several other collective agreements in Austria that provide for a day off on Good Friday for employees who are members of the four Churches. Thus, on a statutory basis, the Austrian legislator explicitly rendered these provisions in collective agreements invalid. Diverging views exist on the question whether this interference with the collective agreements contravenes Article 11 of the Human Rights Convention and/or Article 28 of the Charter of Fundamental Rights. Second, the new legislation does not touch upon the Yom Kippur provision in the general collective agreement which grants a holiday to Jewish employees only on Yom Kippur. Hence, sooner or later, maybe even before the next Yom Kippur on the 8th October 2019, this provision might also find its way to the CJEU.