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13 March 2019

Austria: government struggles with CJEU position on public holiday as a right

Granting a paid public holiday on Good Friday only to employees who are members of certain churches constitutes, according to the CJEU, discrimination on grounds of religion that is prohibited under EU law. To get around this, the Austrian government is seeking to diminish the right to a paid public holiday on Good Friday to just a few hours. A coalition of opponents has started an online petition.

The Court of Justice of the European Union ruled in January 2019 that the granting of a paid public holiday on Good Friday only to employees in Austria who are members of certain churches constitutes discrimination on grounds of religion that is prohibited under EU law. Moreover, the Court, referring also to Article 21 of the Charter of Fundamental Rights of the European Union, said that such legislation cannot be justified either as a measure necessary for the protection of the rights and freedoms of others, or as a specific measure intended to compensate for disadvantages linked to religion. According to the Court, the consequence is that, until Austria has amended its legislation, in order to restore equal treatment, a private employer who is subject to that legislation is obliged also to grant his other employees a public holiday on Good Friday, provided that they have sought prior permission from their employer to be absent from work on that day. Consequently, employers also need to recognise that those employees are entitled to a payment in addition to their regular salary for work done on that day where the employer has refused to agree to such a request.

Good Friday is a paid public holiday only for members of certain Christian Churches. This special regime allows members of those churches to practise their religion without having to obtain their employer’s consent to take a day’s leave. If a member of one of those churches works on that day, he or she is entitled to additional pay in respect of that public holiday. The background to the case is that an employee of Cresco Investigation, a private detective agency and not a member of any of the churches in question, claimed that he suffered discrimination by being denied public holiday pay for the work he did on Good Friday in 2015. The Court stated that the Austrian legislation at issue gives rise to a difference in treatment that is directly based on the religion of employees.

The Austrian trade union confederation considered the verdict a strong argument for a legally settled public holiday for all workers. The country’s workers are high on the EU ranking of working hours and one extra day off is not a luxury. However, the government reacted in a complete different direction and came up with a change of the legislation that will reduce the right to take a day off. The draft law provides workers with paid time off on Good Friday, starting at 14.00 PM. 

The proposal was immediately opposed by a coalition of several NGOs, the Chamber of Labour, religious groupings and the trade union movement. The Chamber of Labour listed several question marks that the proposal does not solve. The coalition started an online petition that is promoted by trade union confederation ÖGB.

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