There are no legal requirements for the wording of a job advertisement to contain particular details about the job. However, em...
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There are no specific legal restrictions on checks an employer may carry out on job applicants. However, employers must be careful not to discriminate against certain candidates. The employer has the right to check personal, educational and...
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Probationary periods are allowed only for permanent indefinite-term contracts and m...
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An employer must not use a probation period more than once with the same employee. The employer must also not fill the same position with a succession of employees on probation, as this is considered abusive. D...
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Job applicants may bring claims for unlawful discrimination against a prospective employer based on pre-contractual liability. If the prospect...
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Foreign nationals cannot travel to Argentina without a visa, and the Immigration Office has authorised the entry of foreign nationals only for working or professional reasons. To obtain such a visa, a local employer registered at the Immigr...
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The following documentation is required from employees: a copy of the employee’s passport; a copy of the Argentinean ID (’Documento Nacional de Identidad’) issued by the Interior Ministry in temporary and permanent residence visas; t...
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Yes, employers can keep records of candidates they...
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Employers must not ask for any personal or private information that is not relevant to t...
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Under Argentinean law, the circumstances of the employment relationship determine whether a person is an employee or a self-employed worker. The legal, technical and economic circumstances are key factors in determining the existence of an ...
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There are no legal distinctions between types of employees. However, economic dependence is a key factor used to determine employment status and it is t...
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Contract law governs directors. However, directors may opt out of the social security system. If directors have executive responsibilities, they must be considered as employees. Therefore, many dire...
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There is specific law in Argentina relating to part-time contracts. Employers must not treat part-time workers less favourably than full-time, indefinite-term employees. Part-time workers must not work more than two-thirds of the...
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Under labour law, the employment contract may be for a fixed term. Fixed-term contracts terminate on the expiry of the specific term for which they were agreed, but require between one and two months’ notice. The contract must be formalis...
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If the employer does not give notice or formalise the con...
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Local law does not prohibit the employment of temporary workers through an employment agency. However, if the employer cannot justify the arrangement or if the contract with the third party agency is illegal, temporary work...
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There are no specific legal restrictions on whether an employer may put its employees at the disposal of another...
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There are no formal requirements for indefinite-term contracts, therefore, is not necessary for these contracts to be in writing. However, employees must: be registered with the Social Security Administration; have a social security...
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It is not common practice in Argentina for the employer to issue an offer letter in addition to the contract, but it is...
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There are no legal restrictions about the language of the employment contract. However it would be appropriate for the contract to be drafted in the local language, so it can be used more effectively as evidence in the case of a dispute. If...
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For indefinite-term employment relationships, there is no obligation to execute an employment contract in writing. However, the employment contract must not revoke any other employee rights granted by law or collective bargaining agreements...
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It is possible to incorporate, at any time, terms from other agreements or documents, including a collective b...
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The employer is only permitted to unilaterally introduce changes to the employee’s terms and conditions if such changes are reasonable, only affect non-essential labour conditions and do not cause moral or financial harm to the employee. ...
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Employers usually provide employees with various policies and rules. These typically include: a code of conduct; a confidentiality policy; an IT policy; email and communications policies; a disciplinary policy; an harassment polic...
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The Committee for the Minimum Wage, composed of representatives from the government, employers and employees, sets national minimum wage rates. Starting from March 2021 full time employees must not earn less than ARS 21,600 per month.�...
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There is no requirement or system for wages to be adjusted for inflat...
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Tax Income tax and social security must be withheld by the employer from the employee’s salary, together with the employer’s contribution. Payments of the taxes and other contributions to the tax authorities are made by the employe...
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In Argentina, for an employee with an income of EUR 100,000, the rate of income tax is 31% of the employee’s total income. However, if the employee is married with two children, he or she may treat approximately EUR 2,731.87 as non-ta...
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Senior executives are usually rewarded with bonuses according to the organisation’s performance and the executives’ individual achievements. There are no rules restricting how much emplo...
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All employees have the right to a 13th month payment, which is paid in two instalments in June and December. During ...
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Under employment law, certain social benefits are made available to employees. These are social security services that the employer grants the worker directly or through third parties. These benefits are not considered as salary, not paid i...
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According to employment law, the working day must not exceed eight hours per day and the working week must not exceed 48 hours, except in the following cases: Directors and managers. Team work, provided that during a three-week period the ...
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The Ministry of Labour may provide for exceptions to the regulations and can authorise working time over the limits prescribed by law. The law establishes a ...
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Argentinean working time regulations are applicable to all employees except for directors and managers of...
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The employer must keep a record of overtime worked....
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Argentinean labour law does not prohibit agile working as long as the working time regulations are observed. There are no specific legal rules on agile working, though many companies include provisions regarding agile worki...
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The maximum number of overtime hours is restricted to 30 per month a...
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A worker must not be com...
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A worker paid on a monthly basis and performing duties during the week is not entitled to any additional payment if he or she does not exceed the maximum legal limit of 48 hours week or the ...
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An employee must not be made to work between 13:00 on Saturdays and midnight on Sundays except where authorised by the Labour Ministry or by any regulation, in which case the worker must be compensated with a rest period of equa...
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Infringements for exceeding daily or weekly limits on working hours or the rules on rest periods are governed by specific laws. Infringements could result in a fine to be paid by the employer. Control...
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The statutory minimum annual leave entitlement ranges from 14 days to 35 days. Note that this includes days falling on the weekend....
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During annual leave, each employee has the right to a ‘vacation bonus’. This is calculated by dividing the employee’s...
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Employees are not required to work on national holidays. Those who do work are entitled to a 100% increase on their normal rate of pay. There are normally fifteen public holidays each year in Argentina. They are: 1 January, New Year’s Da...
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Employees with less than five years’ seniority are entitled to up to three months’ paid leave per year in the case of illness. If the employee has more than five year...
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As well as the right to double the usual period of paid sick leave, employees who are parents receive a family allowance from the social security administration. The main rights to family-related leave and pay are summarised below. Maternit...
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The law establishes paid leave for: marriage: 10 days; death of spouse, child or parent: 3 days; death of brother or sister: 1 ...
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Employers are responsible for protecting employees and their possessions and for guaranteeing a safe and healthy workplace. This includes a safe workplace, safe equipment and work that is safe for physical and mental wellbeing. Therefore, a...
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Health and safety duties are regulated by extensive legislation. The Labour Ministry can take action to penalise any act or omission in breach of the formal requirements or the recording obligations set out in the health and safety at work ...
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If an employer breaches health and safety rules, inspectors from the Labour Ministry can issue an ‘improvement notice’ requiring the breach to be remedied, and the company may be penalised with a fine. The employer’s insurance premium...
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An employer can be liable for harm caused to employees or other visitors by unsafe premises, where t...
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The employer must notify the insurance company covering risks relating to work accidents, who has the legal obligati...
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Employment law prohibits discrimination based on any of the following grounds: sex; race; national origin; religion; political or union opinion or affiliation; and age. In addition, anti-discrimination law prohibi...
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It is possible to treat people differently without discriminating against them, depending on the circumstances of each case. The law prohibits arbitrary or unfair discriminatory treatment, but not all differences in treatment. Therefore, un...
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The legal system prohibits indirect discrimination. This kind of discrimination may be less easy to spot than direct discrimination, but it is unlawful nevertheless. Sometimes, a policy, r...
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Under Argentine labour law an employer must provide all reasonable adjustments to allow a disabled employee to perform his or her duties, but this does not include an obligation to create a special position for such a purpose. A...
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In the private sector there is no specific legislation against harassment. However, general rules against discrimination based on sex can be applied to protect employees against sexual harassment. In addition, ‘mobbing’ is considered fa...
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There are no specific provisions to protect people ag...
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The potential consequences of successful claims for the employer depend on the specific situation. If discrimination, harassment, victimisation or retaliation is deemed to amount to indirect dismissal, the employee is entitled to claim a se...
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According to case law, in discrimination claims the burden of the proof...
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Employers are liable for the acts of employees that occur in the course of perfo...
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There are no statutory obligations regarding gender pay gap reporting in Argentina. There is a consti...
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Argentinean law requires employers to take all necessary measures to ensure the mental and physical integrity of their employees, and they are responsible in the event of a breach of this duty. Along with the employer´s duty to guarantee t...
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Discrimination claims are very common in Argentina, especially cases of discrimination based on union activity, f...
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No statutory provisions exist regarding the amount of compensation for unlawful discrimination, and the amounts ...
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There are no rules that are specific to the protection of employee information, but general data protection law protects employees’ personal information. The law defines personal data as any information about a living individual or a lega...
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Under data protection law, if an employer fails to comply with the rules, the National Direction of Personal Data Protection, a statutory regulator, can apply sanctions and impose fines from ARS 1,000 to ARS...
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The employer must comply with labour, health and safety and social security laws. In order to do so, the following information must be collected at the beginning of any labour relationship: employee personal details; the employee’s famil...
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There are no significant restrictions on monitoring as long as the surveillance is not carried out in a discriminatory way, is reasonable and does not constitute an invasion of privacy. The local labour administration (‘Ministerio de Trab...
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The use of social media either at work or when off duty is not regulated by law. It is therefore advisable for employers to implement policies regarding the use of Facebook, Twitter, MySpace, Bebo and other social media. The employer shou...
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There is no special protection for whistle-blowing in...
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Argentinian employment law establishes a general duty of fidelity in all contracts of employment. As a result, an employee must keep work-related information confidential. This duty of confidentiality exists in relation to the following typ...
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Under Argentinian law, the employee is bound by a duty of fidelity during the employment relationship and is expected to act in good faith during the relationship. The law states that the employee must observe all the duties of fidelity tha...
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After the employment contract has ended, employers can protect confidential information by including post-termination restrictions on an employee’s activities in the employment contract. These clauses are called ‘restrictive covenants�...
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Non-compete clauses are becoming common in Argentinian employment practice, especially for directors and senior employees. In order to be enforceable, these clauses must be reasonable and not excessive an...
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Trade unions represent most types of workers in Argentina, sometimes including executives and professionals. The right to represent workers is awarded by the Ministry of Labour by means of a resolution of recognition called a ‘Personeria ...
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According to the most recent studies, as of 2021 27% of the formal workforce is unionised. ...
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Only officially recognised trade unions can represent the collective interests of employees. As a...
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Employees who are represented by a trade union can elect representatives to further their interests. The number of representatives is determined as follows: If an organisation has between 10 and 50 employees, one representative may be elect...
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The right to strike is protected, but only recognised trade unions may call a strike. This legal principle was confirmed in June 2016 by the Supreme Court. Before deciding to go on strike or lockout, the parties must follow a certain proced...
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In Argentina, based on the Constitution, the employer may terminate an employment contract without cause but must pay mandatory severance pay. If the termination is discriminatory and therefore unlawful, the employee will be entitled to req...
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Employment is presumed to be for an indefinite term and can be terminated by the employer without penalty only for cause. Employees hired for an indefinite term who have mo...
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The employer may terminate an employment relationship with or without cause. If the employer is ending the relationship without cause, the law provides that the employer must give appropriate prior notice of termination. If the employer is ...
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Certain reasons for dismissal are automatically considered unfair. If one of these reasons applies, the legal rules about fair procedure are not relevant. There are particular rules prohibiting the termination of union representative ...
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There are different notice periods according to the employee’s length of service: one month for service of up to five years; and two months for service over five years. During the trial period for indefinite-term cont...
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Employers can make a payment instead of the required notice. Typically, employers do not provide prior notice and often make payments in lieu of notice. The payment is subject to inc...
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No. The resignation is regarded as a voluntary termination of the employment, ...
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It is possible to retire an employee compulsorily in the following circumstances: the employee has at least 30 years of pension contributions and is therefore entitled to receive retirement ben...
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The employer must pay one month’s remuneration for each year of service or any period longer than three months, based on the ‘highest normal, habitual salary’ accrued during the last year of service. For example, if the employee has w...
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An employer can settle purely contractual claims by agreement with the employee, but this can be challenged as invalid by the employee, unless it meets certain conditions. ‘Separation agreements’ by mutual consent must be made before a ...
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Employers can generally decide to close plants and terminate employees without consultation, provided they make full severance payments to the affected employees. If the employer can show that there is a downturn in work volumes or force m...
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When collective dismissals are expected, the employer should initiate a crisis prevention procedure by informing ...
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In a crisis prevention procedure, the employer must submit a plan to the Ministry of Labour. Within two days, the Ministry will invite the employer and the union to a hearing at the Ministry of Labour, and there will be a first attempt at...
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If the employer does not invoke the special ‘crisis prevention procedure’ that applies to mass redundancies for economic reasons or reasons of force majeure, it w...
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The employer must start with dismissals of employees with ...
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The severance payment for collective redundancy amounts to half of the severance payment ...
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By law, if a share takeover does not reduce the liability of the existing employer, there is no specific protection for employees. Employees only have a right to stop working and make a claim for constructive dismissal if a s...
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Sale of a business If a business is sold, the existing labour relationships will continue with the new employer on their existing contractual terms and conditions. The buyer company must take account of length of service with the old...
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Where a business is transferred, all the obligations arising from the employment contract between the transferor and employee at the time of the transfer pass to the transferee. The employment contract continues with the transferee and the ...
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Employees can challenge a transfer if their employment conditions change substantially. If that is the case, they may make a claim for constructive dismissal. If successful, they will be entitled to mandatory severance. An employee...
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Terms The terms of employment and all rights and obligations under it transfer to the transferee. A transfer does not constitute grounds to change the terms of employment contracts. Employment terms can only be changed in accordance wit...
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The transferor and transferee are jointly and severally liable for employment obligations existing at the time of the transfer. This applies whether the transfer is temporary or permanent, whether or not the trans...
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In both transfers of businesses and transfers of employment contracts, collective agreements remain in force and cannot be chan...
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In general terms, the employer has the power to introduce any changes it likes to the form and content of the employment contracts, provided they do not involve an unreasonable exercise of that power, alter the essential terms of the contr...
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There is no statutory term (apart from the notice period for dismissal) that employers need to observe before they can carry out redundancies. Thus, the transf...
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There is no legal requirement to consult with employees or their representatives before a business transfer takes place. However, employees are often given notice that their labour relationships will continue with the buyer from the ...
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The name of the new employer, the date on which the transfer will become effective and details of the employees’ ...
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There is no obligation to consult, but in practice it may be wise to do so if the business activities are going to change, people’s jobs will alter, or if the business is going to be reorganised in such a way that this increases the ris...
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In the case of a ‘transfer of establishment’, if an employer fails to inform employees about the transfer, the employee demand to be given information and/or consider that he or she has been dismissed. In the ca...
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Argentina labour law does not provide for work councils. Employee representatives will continue their position and duties with the new employer. ...
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In 2008, Argentina returned to using a pay-as-you-go system (‘PAYG’) for retirement, based on the ‘redistribution principle’. In general terms, the following conditions apply to mandatory retirement: workers must have made ...
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The only requirement for an employer, with regards to providing access to a pension scheme, is to pay the mandatory contributions to the Social Security Administration. When an employee has reached the retirement age of 70 ...
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An employer may not fund and operate its own pension scheme instead of the state pension scheme, as the state l...
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An employer has statutory duty to consult affected employees in connection with any change to a private pension scheme, except where ...
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In Argentina, pensions are given the same tax treatment as salary and so the income an individual earns from pens...
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Nothing needs to be put in t...
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An investigation must be conducted before any disciplinary action may be taken for a breach of the employment contract, a breach in the duties ...
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Yes, employees are obliged to report any suspected misconduct. It is best practice for employers to remind employees o...
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The law does not establish any specific deadline to start the investigation after the alleged misconduct. However, it requires that the disciplinary action must be ‘contemporary’ to the misconduct, so the sooner the ...
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Employees are not obliged to participate in an investigation conducted by an employer, but the employee must cooperate...
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Yes, but it does not happen frequently except in the most serious cases. ...
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Yes, in order to adequately support the eventual disciplinary action. ...
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There is no special protection for whistle-blowing in the law, and employers are not required to put systems in place to allow for anonymous reporting. ...
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The standards and procedures for low performance are a series of disciplinary actions that can take place gradually. The first step is a verbal warning, followed by a written warning, and then suspension without payment of salary....
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There are no statutory rules regarding employee grievances, but the employer can be bound by an internal policy for handling grievances. The employer can decide whether or not grievances are or can be anonymous, and can establi...
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There are no formal requirements in relation to the form or content of job advertisements in Australia. Nevertheless, it is important to ensure that advertisements and statements made in the course of pre-employment negotiations are not mi...
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In broad terms it is permissible for an employer to conduct reference and qualification checks in the context of a recruitment process. This can include seeking information about a job applicant’s previous work history and confirmation...
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In principle, it is permissible in Australia to make employment subject to a period of probation, and there are no formal rules as to the duration of any such period. At the end of the probationary period the employer may terminate t...
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See section 1.3 above. ...
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Anti-discrimination legislation in all Australian jurisdictions makes it unlawful to discriminate against potential employees, as well as against actual employees. For example, it is unlawful for an employer to take ‘adverse action’...
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Individuals who are not Australian citizens can work in Australia only when they possess a valid visa which enables them to undertake the work in question. It is important, therefore, for prospective employers to ensure that job applicant...
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Employers should keep records of any relevant information relating to the sponsorship of a foreign worker. This includes any correspondence with the Departme...
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Potential privacy law issues can arise in circumstances where an applicant provides personal information to a prospective employer and that applicant is not hired, and the business intends to store or otherwise use that information. As note...
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Employers cannot ask questions in job interviews which evince, or might be taken to evince, an intention unlawfully to discriminate against a prospective employee. This would, for example, preclude questions about an applicant’s trade uni...
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Characterising work relationships Australian courts have adopted a number of ‘tests’ in order to determine whether a particular work relationship is one of employer and employee or of principal and contractor. The traditional approach w...
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Almost all employees in Australia have their terms and conditions of employment regulated to a greater or lesser extent by federal or state industrial legislation. In particular, the great majority of employees fall within the scope of the ...
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It is common practice for a company director to be classified as either an executive director (who is also an employee of the company) or a non-executive director (who is not an employee of the company). Whether or not a director is also an...
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Part-time employment Under Australian law, employees who ordinarily work 38 hours or less per week are commonly described as ‘part-time’ employees, including in awards and agreements made under the Fair Work Act. Around 30% of all emplo...
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Fixed-term contracts Employers and employees are generally at liberty to enter into contracts that are expressed to remain in force until the occurrence of some pre-determined event such as a specified date or the completion of a specified ...
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Fixed-term employment may convert into open-ended employment in a range of circumstances. The most straightforward is where the employer and employee formally negotiate such a conversion. Conversion may also occur where an employee has been...
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The engagement of temporary workers through an employment agency or supplier is commonly referred to in Australia as ‘labour hire’. It typically involves the supplier providing a service to another organisation (‘host’) by supplying...
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Employers (‘first employer’) may also enter into arrangements whereby some of their employees are ‘loaned’ or ‘seconded’ to another employer (‘second employer’), such as a fellow member of a corporate group. Such arrangement...
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Employment contracts in Australia can be written, oral, or a combination of the two. They may also include terms implied by law and by conduct. It is not strictly necessary for employment contracts to be in writing. It is, howeve...
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It is common practice for an offer letter to set out core terms and conditions of employment and upon acceptance, to become the employment contract. Sometimes the offer letter is accompanied by a separate document which the employ...
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Employment contracts can be in any language. For obvious practical reasons, it is preferable that they be in English. Furthermore, Australian law requires employers to make and keep ‘employee records’ in relation to a rang...
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Contracts of employment in Australia may contain terms implied by law and terms implied by conduct. Both forms of implied terms will yield to express provisions to the contrary. They will also yield to any inconsistent provision of a statut...
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It is possible to incorporate terms from other agreements and documents, including industrial instruments, into a contract of employment. This is most effectively done by expressly referring to the relevant agreements and documents in the...
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Variation of an employment contract requires the agreement of both the employer and the employee. An employment contract cannot unilaterally be varied. Any attempt to do so is likely to constitute a breach that would enable the emplo...
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Employer policies and procedures are commonly made available to employees at the beginning of employment, and may be supplemented or varied during the currency of the employment relationship. Typically, employment contracts will...
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The great majority of Australian employees are covered by one of 122 ‘modern awards’. These awards set minimum terms and conditions of employment for the employees who fall within the coverage of the award in question. Failure to ...
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Minimum wages are not automatically adjusted in line with inflation. However, the Fair Work Commission must take inflation into account when setting minimum wage rates under the NMWO and through variations to modern award minim...
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Tax Under the Pay As You Go system, Australian employers are required to withhold tax at a specified rate from any payments made to an employee. The employer must remit this amount to the Australian Taxation Office (‘ATO’). T...
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Income tax deduction EUR 100,000 equates to approximately AUD 165,000. For an employee who is married with two children and earning this salary, and without accounting for any other factors affecting income tax thresholds and rates...
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Bonus entitlements (if any) will be regulated by any applicable awards, enterprise agreements or individual employment contracts, and/or by employer policies. These instruments and policies commonly (but not invariably) provide ...
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The National Employment Standards (‘NES’) set out in the Fair Work Act comprise minimum terms and conditions that apply to all employees. They include provision for annual leave, carer’s/personal leave, compassionate leave, par...
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Australian employees are commonly (but by no means invariably) provided with access to salary sacrifice arrangements (‘SSA’) whereby they contractually agree to give up part of their salary in exchange for a benefit of a similar value. ...
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There is no comprehensive legal limit on daily hours of work, although industrial instruments (modern awards and enterprise agreements) may impose restrictions on daily hours of work, and requiring employees to work excessive hours ma...
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It is not permissible for an industrial instrument to exclude any provision of the NES, and any contractual provision that purported to derogate from the NES would be unlawful. It follows that it would not be possible to exceed the wee...
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The minimum terms and conditions in relation to working time as set out in sections 5.1 and 5.2 above apply to all employees who fall within the Fair Work Act. This means that they apply to the overwhelming majority of employees...
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The Fair Work Act and the accompanying Regulations set out detailed requirements in relation to the keeping of employee records and the provision of pay slips to employees. The required records must include basic information...
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Self-management, open-plan offices and remote working Generally, the capacity of employers to provide open-plan offices or self-managing interdisciplinary teams is a matter of managerial discretion, providing that the arrangement is ot...
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As indicated in section 5.2 above, any request by an employer that an employee work additional hours must be ‘reasonable’ under the criteria set out in the law. The law does not, however, set a specific limit on the...
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The law does not contain any express requirement that the employer obtain consent from employees to work additional hours or overtime. However, as set out in section 5.2 above, an employee may refuse to work additional hours if they...
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There is no legislative provision which dictates how overtime is to be paid. Industrial instruments or employment contracts will typically set out the relevant rates of pay, including overtime rates. Such rates are generally cal...
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Labour legislation does not expressly provide a statutory entitlement to breaks or rest periods. Meal breaks are commonly dealt with in industrial instruments or contracts of employment, most often in terms to the effect that a...
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Working hours A contravention of the rules regarding working hours set out in the NES, a modern award or an enterprise agreement constitutes a contravention of a civil remedy provision of the Fair Work Act. An affected employee, th...
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Under Australian law all employees (except casual employees) are entitled to a minimum of four weeks of paid annual leave per year. Those who are characterised as ‘shiftworkers’ are entitled to an additional week of paid�...
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Payment in respect of statutory annual leave is calculated at the employee’s base rate of pay for their ordinary hours of work. It therefore does not include any overtime, penalty rates, or&nbs...
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Employees who would ordinarily work on a day that coincides with a public holiday are entitled to be absent from work and to receive payment at their base rate of pay for their ordinary hours of work on that day. Casual employees who are no...
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All employees (except casual employees) are entitled by law to ten days of paid personal/carer’s leave per year. Personal/carer’s leave can be taken: when the employee is unable to work due to personal illness or injury; or to pr...
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Unpaid parental leave The law provides for unpaid parental or adoption leave. Employees with at least 12 months of continuous service are entitled to up to 12 months’ unpaid leave relating to the birth or adoption of a child who is in t...
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Long service leave (‘LSL’) This is a distinctively Australian form of leave entitlement which was originally intended to provide colonial public servants with an opportunity to take an extended period of leave in the ‘home country...
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In Australia, there is no single work health and safety (‘WHS’) law that applies across the country. However, the WHS laws in each of Australia’s nine jurisdictions are very similar, and seven of them have enacted a model Work Health ...
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The WHS laws of each jurisdiction are administered and enforced by a jurisdiction-specific WHS regulator. Under the Model Act the relevant regulator has responsibility for monitoring and enforcing the legislation, and for conducting legal p...
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In all Australian jurisdictions breaches of work health and safety duties are criminal offences and can result in substantial penalties. However, it is important to note that breach of the Model Act involves only criminal penalties; it does...
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Employers could be criminally liable for the activities of third-party contractors under the Model Act in some circumstances. First, the Model Act provides that a PCBU must ensure that the health and safety of ‘other persons’ is not put...
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Obligation to notify regulator of notifiable incidents Each jurisdiction in Australia has a WHS regulator charged with enforcement of the jurisdiction’s WHS laws (see section 7.2 above). PCBUs are required to ensure that the WHS regulato...
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Each of the Australian jurisdictions, including the Commonwealth, has enacted legislation that is intended to prevent discrimination in employment and in other contexts against people on the ground that they possess specified ‘protected a...
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All anti-discrimination statutes contain a range of general and specific exceptions, exclusions and exemptions that, if established, have the effect that acts of discrimination that fall within their scope are not unlawful. It is import...
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Australian anti-discrimination statutes prohibit both direct and indirect discrimination. The test for what constitutes indirect discrimination differs between jurisdictions, but will generally be taken to occur if a condition or requir...
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Disability discrimination law requires employers to make, or propose to make, ‘reasonable adjustments’ to try to reduce or remove barriers and promote equal opportunity for people with disabilities. Where failure to do so has or would h...
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Harassment Harassment based on a protected characteristic is prohibited by a range of provisions at both the Federal and State and Territory levels. For example, Federal race discrimination law prohibits offensive behaviour based ...
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Anti-discrimination legislation at the Federal and State and Territory levels prohibits victimisation of a complainant, a person who supports a complainant and a person giving evidence regarding a complaint. By way of illustration, unde...
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Discrimination The consequences of, and remedies for, discrimination claims vary depending on whether the action is pursued under anti-discrimination legislation (Federal or State or Territory), or under the general protections provisions...
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Burden of proof The standard of proof under the anti-discrimination statutes and the general protections provisions of employment law is the ‘balance of probabilities’. The burden of proof is reversed for claims under employment leg...
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Vicarious liability Under Federal anti-discrimination legislation, an employer or an individual in a managerial or supervisory position may be found vicariously liable for unlawful discrimination by its employees in connection with their ...
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The Workplace Gender equality legislation requires non-public sector employers with 100 or more employees to submit a report to the Workplace Gender Equality Agency (WGEA) each year. The reporting process requires employers to complete a qu...
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Workplace health and safety legislation requires a person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the physical and psychological health and safety of workers engaged or caused to be engage...
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There are no reliable centralised data on the numbers of complaints made to the various regulatory bodies that have responsibility under Federal and State and Territory anti-discrimination legislation. At the Federal level, formal complai...
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Historically, awards of compensation in discrimination cases in Australia have generally been low. In part, this can be attributed to the fact that in some jurisdictions there are legislative caps on awards of damages, and such caps are set...
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Employees in Australia are under an implied duty of fidelity. Amongst other things, this requires employees not to injure their employer’s interests by disclosing or misusing confidential information acquired in the course of their employ...
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The duty of fidelity requires that employees not engage in business activities that compete with their employer during the employment relationship. That does not necessarily mean, however, that employees cannot ...
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Once employment is ended, the duty of fidelity no longer operates to protect the confidentiality of the employer’s information. That does not mean, however, that such information is entirely unprotected. There are...
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The common law doctrine of restraint of trade means that an employer cannot protect itself against all competition by a former employee. It may, however, be possible to secure a measure of protection against certain forms of post-employment...
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Despite declining membership levels in recent years, trade unions continue to play an important role in social, political and industrial life in Australia. The Fair Work Act is the principal piece of legislation governing workplace relation...
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In Australia, some industries have moderately high rates of union density, whilst others have almost no union presence. Density is highest in the public sector – notably in education and training, public administration, and...
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Under the Fair Work Act, employers can be required to negotiate with unions where a majority of the workforce wish them to do so,...
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Unlike many European countries, Australia does not have formal provision for works councils at either the level of the workplace or the enterprise. Many workplaces h...
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There is no freestanding ‘right to strike’ in Australian law. On the contrary, all industrial action by employees is, on its face, unlawful under both common law and statute. However, the Fair Work Act does permit the taking of lawful i...
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In principle an employer can lawfully terminate the employment of an employee on any grounds and in any manner, so long as it adheres to the terms of the relevant contract of employment. This principle must, however, be read subject to an e...
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The common law of employment offers only very limited protection to an employee whose employment is terminated, because the common law generally allows the employer to terminate at any time and on any ground, so long as it observes the term...
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To minimise exposure to claims arising out of termination of employment, employers should: have clear policies about which forms of conduct may lead to dismissal, communicate these policies to employees, and apply them in a consistent mann...
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Employees may bring a ‘general protections’ claim against an employer if the employer has taken ‘adverse action’ against the employee for a prohibited reason. Such reasons include that the employee: has a ‘workplace right�...
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Australian law sets out minimum notice periods that employers must give to employees: Period of employment Notice period One year or less one week One to three years two weeks Three to five years three weeks More than five years ...
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Provided it is permitted by the contract of employment, applicable modern award or enterprise agreement, employers can terminate employment with immediate effect by making a payment in lieu of the required notice. Payment in lieu of notice ...
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Employees who wish to resign are typically required to provide the employer with notice of resignation. There is no statutory minimum notice period for employees; the notice period will usually be set out in the applicable modern award, ent...
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It is unlawful for an employer to discriminate against an employee on the basis of age. This typically means that compulsory retirement polic...
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Severance for Redundancy An employee whose position is made redundant will generally be entitled to a redundancy payment. The matter is commonly dealt with in enterprise agreements, subject to the following statutory minimum payments: ...
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Where there is a risk that an employee may bring a claim against an employer, the employer may seek to enter into a separation agreement or release...
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Statutory duty to consult Australian law requires that where an employer has decided to dismiss 15 or more employees for reasons of an ‘economic, technological, structural or similar nature’, it must notify and consult with any union(s)...
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Information in relation to the statutory duty to consult The employer must notify each union that represents any of the affected employees of three things: the proposed dismissals and the reasons for them; the number and categories of empl...
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Both the statutory duty to consult, and the obligation to notify Centrelink, are couched in terms of notification ‘as soon as practicable’ after taking the decision to terminate employment, but before implementing it. The model consulta...
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If an employer fails to comply with the information or consultation obligations in an award or enterprise agreement, the employer will be in breach of the general statutory prohibitions on contravening awards or enterprise agreements, and a...
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There is no statutory selection order that must be applied under Australian law. In principle, practices such as ‘last on first off’ or ‘first on last off�...
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Australian labour law provides employees with a minimum entitlement to severance pay in all cases of redundancy. There are no ad...
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Under Australian law a share takeover of a company (as distinct from a business sale) does not result in a change in the identity of the employer. Consequently, the change of ownership will have no effect on the employment of the comp...
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There is no provision in Australian law whereby, on the transfer of all or part of a business, the workforce in that business is automatically transferred to the new owner of the business on the employees’ existing terms and conditions ...
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The new employer (transferee) is not under any obligation to offer employment to employees or former employees of the transferor. If, however, the transferee does offer employment to some or all of the transferor’s employees, then is...
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As noted in section 14.2 above, in a transfer of business situation employees are not automatically transferred, nor are they entitled to be provided with employment by the new employer/transferee. Rather, where there is a transfer o...
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Terms of employment contract Where a transfer of business occurs, the transferring employee’s employment contract with the old employer is terminated, and the transferring employee will enter into a new employment contract with the new em...
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Generally, liabilities stemming from any litigation (e.g. an unfair dismissal or work-injury claim) will not transfer, as the old employer remains the named respondent. Commercially, it is possible for transferors and transferees t...
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Where there is a transfer of business in the sense described in section 14.2 above, any ‘transferable instrument’ that covered the old employer prior to the transfer will normally cover the new employer and the transferring employ...
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As discussed in section 14.2 above, contracts of employment do not ‘transfer’ in Australia in transfer of business situations. The transferring employee’s employment contract with the old employer is terminated, and the transferrin...
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The transferee in a transfer of business situation is not obliged to offer employment to all or any of the employees of the transferor. In that sense, employees can ‘safely’ be dismissed at any time in the context of a transfer. If...
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A requirement to consult with employees or their representatives will generally be imposed only on the old employer, and can derive from: applicable industrial instruments, such as an enterprise agreement or modern award; and the...
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Industrial instruments Where the standard consultation clause under a modern award applies, the old employer is required to provide in writing to the employees and their representatives all relevant information about the change including ...
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Industrial instruments The form and procedure of the relevant consultation obligations may differ depending on the applicable modern award or enterprise agreement. Consultation generally involves discussing a framework of the proposed ter...
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Industrial instruments Failure to comply with a consultation term of a modern award or enterprise agreement could result in the imposition of civil penalties and the making of other court orders. Where a party (most typically a un...
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There are no statutory provisions relating to works councils in Australia. Any representative arrangements that may be in place at the transferor are a matter between the transferor and its employees and/or their unions. If those arrang...
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Australia has a comprehensive social security system that provides means-tested benefits to meet a range of circumstances. One element of this system is the Age Pension, which is provided to individuals of retirement age (‘retirement age�...
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Employers in Australia make contributions on behalf of employees to the employee’s chosen superannuation fund. If the employee does not choose a fund, a new employer must check to see if the employee has an existing fund (‘stapled fund�...
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It is legally permissible for an employer to operate its own superannuation fund, which could be a defined-contribution or defined-benefit fund. With the advent of mandatory superannuation arrangements, however, this is no longer c...
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Employers are responsible for selecting the default fund, and most employers simply pay the mandated Superannuation Guarantee contributions to the superannuation funds chosen by their employees (or to the default fund for employees that do ...
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Superannuation contributions typically receive favourable tax treatment. Superannuation Guarantee contributions are not generally included when determining an employee’s ‘assessable income’ for the purposes of income tax. Superannuati...
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Contracts of employment should specify whether the wages or salary provided under them is ‘inclusive’ or ‘exclusive’ of the mandated Superannuation Guarantee contribution. For waged employees who are paid by the hour, the rate of pa...
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Timing for starting an investigation With the exception of some specific types of public sector investigations which might be subject to regulatory timeframes, there are no specific requirements under Australian law relating to the timi...
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Must employees participate in a workplace investigation? Employees in Australia have an implied contractual duty to obey lawful and reasonable directions given by their employer, when those directions fall within the scope of their emp...
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An internal investigation is a fact finding, not disciplinary or legal, process and there is no right to legal representation in that process (unless provided for in an employer’s policies). However, employees are generally entitled ...
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In circumstances where an employer is seeking to rely on an investigation to take disciplinary action against an employee, there is no obligation for the employer to provide the employee with all evidence gathered in that investigation. ...
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Regime for whistleblowing There are effectively two regimes for whistleblowing in Australia, one in the private sector and one for government employees. Whether an employer is required to put systems in place for anonymous reporting will de...
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Australian law does not prescribe how an employer must deal with a poorly performing employee. However, some employers will be subject to rules about this, for example through industrial instruments that apply to the workplace or ...
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Rules about grievance handling Other than the requirements relating to investigations and whistleblowing discussed elsewhere in this chapter, Australian law does not prescribe how an employer must handle an employee grievance. Howeve...
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Job advertisements must not be worded in a discriminatory way. They must be worded gender-neutrally. They must specify the minimum wage according to law and the applicable collective agreement for the position. If no mandatory regulations o...
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The employer must not ask for details of health conditions that will not affect performance or are not relevant for the job (e.g. HIV where the position is office-based). An employer may check if the employee is in a state of health that wi...
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An offer of employment may be made subject to the completion of a probationary period. The probationary period must not be longer than one mo...
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During a one-month probationary period, either party may terminate the employment contract with immediate...
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Job applicants may bring claims for compensation against a prospective employer if their applications were rejected for...
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An employer must obtain a work permit for a foreign worker if the foreign worker does not have a permit allowing him or her to nominate an employer in Austria. There are various different types of work permits. For example, qualified employ...
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Foreign workers who do not belong to an EEA country or Switzerland require a work permit. Therefore, the employer must keep work permits on the premises and available for inspection. For foreign workers who remain subject to their home co...
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Under the GDPR, the controller is obliged to delete personal data without undue delay if that data is no longer necessary for the purposes for which it was initially collected or processed (i.e. the application process). Thus, the employer ...
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In principle, questions concerning the employee’s private sphere are impermissible due to the applicant’s privacy rights. Exceptions exist if the question directly affects the employment relationship. Questions about religious b...
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Whether an individual is considered to be an employee or an independent contractor depends predominantly on the following criteria: whether the individual must work fixed hours and in a specific workplace; whether the individual may assign...
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Austrian labour law distinguishes between blue and white-collar employees. Under the White-Collar Employees Act (Angestelltengesetz) a white-collar employee is a person who is employed predominantly in commercial or other higher, non-commer...
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There are some rules which apply specifically in connection with the employment of company directors, as they are always considered to be...
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In general, employees are not entitled to request part-time hours except for parental reasons. Essentially, there are no restrictions regarding part-time employment. Employers and employees are therefore free to agree on part-time working...
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Employees and employers are generally free to agree on fixed-term employment. However, employment contracts for a definite period cann...
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If there is no justification for concluding multiple fixed-term contracts in succession, the employment converts into an indefinite-term employment relationship (see above in 2.5). Further, a fixed-term contract may convert into an indefi...
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Essentially, employers are free to employ temporary workers through an employment agency. In fact, the employment n...
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The employer may put its employees at the disposal of another organisation, but some aspects of employment law will apply to it. The law provides for equal treatment during the assignment. So...
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There is no obligation to provide a written employment contract in Austria. However, the employee is entitled to written notification (‘Dienstzettel’) setting out the main duties and obligations arising from employment immediately after...
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It is not common practice i...
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There is no mandatory requirement in terms of the language that must be used in an employment contract. The contract may be in English as well as German provided all the parties understand it. Ho...
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Generally, statutory law, collective agreements and workplace agreements regulate a significant part of the employment relationship even if not explicitly set out in the contract. As a rule, individual employment contracts cannot change pro...
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Applicable collective agreements and workplace agreements regulate the employment relationship even if they are not set ou...
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Generally, if a change to the employees’ terms and conditions is not covered by the employment contract and/or is not reasonable (e.g. modification of the...
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All documents that are referred to in the ...
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There is no statutory minimum wage. However, minimum wages can be set in collective bargaining agreements. Therefore, the social partners have major influence on the minimum wage in Austria. At present, there are more than 850 collective ba...
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There is no explicit requirement to adjust wages in line with inflation. Wages are only adjusted by collective bargaining increases, which are usually agreed between the parties to the collective bargaining agreements every year. However, i...
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Tax and the employees’ social security contributions are deducted from the employees’ gross salary and paid to the relevant authorities by the employer. The employer is liable for the deduction and payment of the contributions. Tax ...
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For an annual gross salary of EUR 100,000 the tax payable would be approximately 26% (i.e. EUR 26,000) and the social security contribution approximately 13% (i.e. EUR 13,000). Therefore, the net amount would be a...
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There are no specific rules governing the payment of bonuses, other than the regulations set out in the Corporate Governance Codex that apply to members of management bo...
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Employers pay social insurance contributions for the statutory pension, health, unemployment scheme...
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The benefits that employers offer to employees...
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The daily limit on normal working hours is eight hours. The weekly limit is 40 hours. However, collective agreements may provide for lower limits of working hour...
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The limits on working hours may be exceeded by a flexible allocation of working time and overtime, generally based on collective bargaining agreements or works agreements. However, the new maximum daily working time introduced in September�...
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Most management staff are exempt from the law on working time and rest periods. The law provides that employees are excluded if they have been given independent decision-making (i.e. executive or managerial) authority and if they can set th...
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The employer must monitor employees’ working time and ensure ...
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Comin...
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Working time, including overtime, must not exceed twelve hours a day or 60 hours a week, ...
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Comin...
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According to Austrian law, overtime work must be remuner...
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If the daily working hours exceed six hours, the employee must take a 30 minute break. This break is usually unpaid unless otherwise agreed. Employees are also entitled to a daily rest period of at least 11 hours and a weekly rest pe...
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For exceeding the limits on daily or weekly working hours ...
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The statutory annual leave entitlement is 25 working days. If Saturday is included as a working day, the annual entitlement is 30 working days. The entitlement increases after 25 years of service to 30 working days and 36 working days if Sa...
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For periods of leave an employee is entitled to the remuneration he or she would have received if not on holiday. The method of calculation depends on the remuneration pattern: Remu...
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There are 13 paid public holidays in Austria which must be provided and are not included in the statutory minimum holiday entitlement. Employees may only work on public holidays as permitted by law. If they do work, they will receive salary...
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Employees who fall ill or who are injured unintentionally or without gross negligence are entitled to paid sick leave for: a minimum of six weeks and a maximum of 12 weeks at full pay; a further four weeks (i.e. after the 6 to 12-week ...
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Maternity rights Pregnant employees and mothers are protected from dismissal from the date of the pregnancy until at least four months after giving birth. During this time, these employees can only be dismissed based on a prior court orde...
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Educational leave Educational leave may be agreed between the employer and employee if the employee has worked for the organisation for a minimum of six months. This kind of leave must be used for the further training of the employee and ...
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Employers have a general obligation to organise working conditions in a way that protects the life and health of employees. Employers must also safeguard employees’ interests. Accordingly, the place of work must be equipped to avoid w...
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Mandatory health and safety measures are primarily set out in the Austrian Employee Protection Act (‘ArbeitnehmerInnenschutzgesetz’ or ‘ASchG’). Other laws that contain health and safety regulations include the Mother’s Protection...
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Health and safety provisions are enforced by the Labour Inspectorate (‘Arbeitsinspektorat’). The violation of statutory employee-protection provisions can lead to high administrative fines. The amount varies greatly according to t...
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In general, employers are not liable for the activities of third-party con...
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An employer must immediately notify the Labour Inspectorate (‘Arbeitsinspektorat’) of any accident at work resulting in an employee’s death or serious injury, unless a report has been made to the police (who are in turn requir...
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Equal treatment law aims to ensure that men and women are treated equally at work. In 2000, two EU directives came into force with the following objectives: to implement the principle of equal treatment between persons irrespective of raci...
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Exceptions to the general rules against discrimination may arise if the differential treatment is an occupational requirement and is therefore justified. For example, an exception would apply where religion or belief is a substantial, legit...
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Indirect forms of discrimination are prohibited. For example, part-time employees must not be treated less favourably than full...
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Disadvantages placed on employees with religious beliefs, for example Muslim women who wear a headscarf at work based on their religious conviction, can be considered prohibited discrimination on the basis of sex, religion or ethnic origin....
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Harassment is deemed to be a form of discrimination under equal treatment law. Sexual and other forms of harassment are prohibited in this context, including any negative behaviour in relation to a person’s racial or ethnic origin, religi...
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An employee must not be discriminated against or dismissed simply because he or she has brought an equal treatment claim or acted as a witness in discrimination proceedings. T...
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A job applicant who is discriminated against by an employer in the recruitment process is entitled to compensation. Essentially, the amount of compensation for not getting a job based on discrimination is equal to at least two months’ rem...
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If there is a claim for discrimination in employment, the claimant must present credible evidence of discrimination to the competent Labour and Social Court. The employer as defendant party has the burden to prove that the difference in tre...
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Equal treatment law not only prohibits discriminatory behaviour on the part of the employer, but also that of its representa...
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There is no general legal obligation for employers to report gender pay differences. However, employers of more than 150 people must prepare an internal income report every two years, covering the average income of all employees in the co...
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In general, employers have a statutory obligation to organise the working conditions in a way that protects the life and health of employees. In addition to physical health, Austrian labour law also protects mental health. This includes men...
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There is no publicly available information about recent types of claims. We are aware that discri...
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The typical amounts of awards made in cases of unlawful discrimination are limited by the minimum and maximum payment levels defined by the Austrian equal treatment law. In the event of a discriminatory failur...
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There are no rules that are specific to employee information, but the provisions of the General Data Protection Regulation (GDPR) are applicable for any person processing personal data belonging to someone else (which would include an emplo...
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Breach of the General Data Protection Regulation (‘GDPR’) can result in serious financial penalties: fines up to EUR 20 million or 4% of a company’s total global turnover in the previous fiscal year (whichever is higher) for the most ...
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An employer may collect and process confidential employee information, but if it is ‘personal data’ (that is, information relating to an identifiable living individual, who can be identified directly or indirectly by reference to the da...
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Employers may have a legitimate interest to protect by implementing technology that monitors the activities of its employees, but these interests must be balanced with an employee’s right to privacy, which extends to the person’s workpl...
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There is no case law concerning access of employees’ social media by employers. However, there is legal doctrine concerning the use of the Internet and emails by employees for private reasons to the effect that if private use of the Inter...
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In 2023 the EU Whistleblowing Directive was implemented into national law. The Austrian law (the ‘HinweisgeberInnenschutzgesetz’) covers the following areas: public procurement; financial services, products and markets and the pr...
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According to Austrian law an employee must act in good faith in relation to his or her employer. This means that he or she must safeguard the employer’s interests. The employee is obliged to keep professional secrets if the employer has a...
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By law, employees must not take part in activities that compete with their employer during the employment relationship. It is grounds for dismissal if employees operate an independent commercial enterprise or engage in trading act...
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There is generally only a duty to keep work-related informat...
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Generally, the prohibition against competition ends when the employment relationship ends, unless otherwise agreed. In accordance with the law for white-collar and blue-collar workers the duty not to compete can extend beyond termination ...
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The Austrian Trade Union Federation (Österreichischer Gewerkschaftsbund, ‘ÖGB’) is an umbrella organisation of labour unions of employees. It is the only voluntary association of employees in Austria. It is subdivided into seven membe...
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The Austrian Trade Union Federation has approximately 1.20 million members (union density of approximately 40%), while the Chambers of Labour have appro...
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In Austria employers are not required to work with trade unions. The majority of employers are represented by the Austrian Federal Economic Chambers (Österreichische Wirtschaftskammer...
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A works council must be set up if a business permanently employs at least five employees over the age of 18. A ‘business’ means a workplace that forms an organisational unit that has a production process or operation largely independent...
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There is very little law about strikes and other industrial action in Austria. Only a few isolated regulations in constitutional law, labour law, and social security law exist. There is no law that obliges the unions to inform the employer ...
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Under Austrian law the employer can give notice without giving a reason. It is not necessary to demonstrate a redundancy situation or any other reasons. In principle, giving notice in writing is only obligatory when contractually agreed, bu...
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Employees employed for more than six months in a business with at least five permanent employees are entitled to general protection against termination. This means they have the option to appeal against a dismi...
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There are no statutory selection criteria that need to be used in redundancy situations. The employer can give notice without giving a reason. In terms of termination for employee-related reasons, such as poor performance, the employer may ...
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Special protection against termination applies to the following groups of employees: disabled employees who have been with the organisation for at least six months, with certain exceptions (the degree of disability must be officially deter...
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The statutory notice period for employees is one month from the end of each calendar month. It is possible to contractually agree on a longer termination period for the employee, but it must not be longer than the notice period for the empl...
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The employee is entitled to the same financial treatment during the notice period, as Austrian labour law does not provide for payment in lieu of notice. The employee is also obliged to work during the notice period. It is possible to relea...
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Ordinarily, an employee who resigns is subject to the same notice terms and notice period that apply to termination by the employer (see section 12.5). If the employee resigns with immediate effect, the employment will be deemed terminated ...
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It is not possible to retire an employee compulsorily when he or she reaches the statutory retirement age. T...
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The employee is entitled to the same financial treatment during the notice period as during ordinary employment and this covers the following: remuneration until the end of the notice period; pro-rata holiday pay (i.e. pay for unused annua...
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It is possible to settle claims by employees by means of a voluntary termination payment, bu...
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The employer must notify the works council if it plans to give notice of termination to an employee. The works council has one week to consent, disagree, or offer no views. This so-called ‘preliminary procedure’ must be observed for eve...
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In cases of collective redundancy, the employer must provide the Public Employment Service (the ‘Arbeitsmarktservice’, or ‘AMS’) with written notification of the planned dismissals within a 30-day period. Before notifying AMS, the e...
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There is no minimum consultation period, but it must be held when the works council still has a genuine opportunity to assess the consequenc...
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If an employer fails to conduct the so-called ‘preliminary procedure’ (i.e. the ...
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There is no statutory selection order for dismissals under Austrian law. However, if an employer is basing dismissals on operational reasons, the employer must prove...
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In principle, there are no compulsory additional payments to be made in addition to the statutory severance payment that dismissed employees may be entitled to (if they belong to the pre-2003 severance payment schem...
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A transfer of undertaking requires a change of the identity of the employer (owner). This will not generally be...
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Sale of a business If the business is sold, the buyer, as the new employer, becomes automatically bound by the rights and obligations contained in each individual employment contract. The employee transfer rules apply to sales, leases, and ...
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For the old employer: It must inform and consult in advance with the works council, if one exists, about the planned transfer. If no works council is established, either the old employer or the new employer must inform the employees in adv...
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There is no general right for employees to object a transfer and therefore the employment contract with the transferee remains valid. However, employees have a right to object that...
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Terms The transferee, as the new employer, must take over all rights and obligations contained in each individual employment contract. This happens automatically by operation of law. Therefore, employees may not be employed by the transfere...
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As soon as the transferee steps into the existing employment contract as the new employer, replacing the transferor, any liabilities resulting from that contract are also transferred. For obligations arising from the period prior to the tra...
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Upon transfer, the employment contract will be governed by the collective agreement of the transferee. If both the transferee and the transferor are subject to the same collective agreement, there will be no change. If a different collectiv...
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Changes to individual contracts can be made only by mutual agreement or if one party has reserved the right to unilaterally change employment conditions. This right can only be exercised in good faith and is usually connected to bonus or pr...
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Neither the transferor nor the transferee may dismiss employees by reason of the transfer. Such a termination might be effective at first, but the employee could bring an action for a declaratory judgment that the dismissal was based on the...
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The seller must inform and consult in advance with the works council, if one exists, about planned transfers. If no works council has been established, either the seller or the buyer must ...
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The following information must be provided: the date or proposed date of the transfer; the reason for the transfer; the legal, economic and social ...
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If a works council has been established and the changes are detrimental to employees, the works council may make recommendations to alleviate or avoid negative effects, and might wish to co-op...
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There are no direct sanctions if the obligations to inform and consult are disregarded, but the emplo...
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If the entire business is transferred, the existing works council and any works agreements remain unaffected. However, if only part of the business is transferred (i.e. becomes legally independent), the existing work...
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Both employees and employers pay social security contributions into the compulsory public ...
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Employers are required to pay contributions to the compulsory public pension scheme but there is no other requirement for an employer to provide its employees with access to ...
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Employers are free to provide company pension schemes for their employees. These pension schemes are regulated by a law which provides a framework to ensure the payment of benefi...
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A company group insurance scheme (‘Betriebliche Kollektivversicherung’) or commitment to a pension scheme (‘Pensionskassenzusage’) must be established by way of a works agreement. Pension schemes may be set up by co...
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Pensions are subject to taxation. However, employees�...
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A pension scheme can be based on an individual contract between the employer and the em...
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Employers have the right or, in some cases, the duty (e.g. in respect of a duty of care, establishment of a compliance organisation, antitrust audits) to carry out inspections and investigations. The main purpose of conducting investi...
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In general, where an employee’s own work processes are affected or where the employee has a management function with control and supervisory authority over other employees, it is not only permissible but also mandatory for the empl...
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In principle, there is no legally stipulated period of time in which the employer must take action after being informed of the conduct. Under the general duty of care, the employer must take action as soon as possible to begin ga...
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Employees are generally obliged to participate in internal investigations, based on either the employer’s right to issue instructions or the employee’s duty of loyalty. Insofar as the investigation concerns work-related info...
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There is no explicit statutory rule that entitles an employee to involve third parties from outside the company in the investigation. If the employee does not wish to answer the questions asked, the employer may consider giving the em...
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We are not aware of any statutory rule requiring the employer to disclose all of its evidence to the employee during the internal investigation. If the employer keeps a personal employee file, the employee generally has a right t...
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Starting in 2013 the Economic and Corruption Prosecutor has had its own website that allows reports of corruption and economic crime to be made with a guarantee of full anonymity. Because of its success, this system�...
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First of all, it should be noted that while the employee is obliged to make honest efforts, he or she owes only his job performance, but no particular success. The employer may admonish/warn the employee in case of low performanc...
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If the employees’ grievance is, for example, a complaint about other employees or supervisors (e.g. mobbing), there are no specific legal regulations on how the employer should deal with it. However, under the general duty of care, th...
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There is no prescribed form of wording required for job advertisements or details that need to be included. However, care should be taken to ensure that the advertisement does not discriminate between applicants on grounds of race, origin,...
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Employers are not prohibited from carrying out background checks and these can be done at any stage in the hiring process. Nevertheless, it is recommended that checks should only be carried out where they are proportionate and necessary, ...
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Bahrain labour law allows employers to apply a probationary period where this is expressly stated in the employment contract. Probation can be applied only once during the period of employment. The probationary period can last up to t...
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The employer or the employee can give notice to terminate the employment contract at any time during the probationary period. At least one day’s written notice must be given. ...
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The Bahrain Labour Law does not expressly extend any protection to job applicants. It is arguable that applicants can bring a claim of discrimination on grounds of race, origin, religion, language or belief where they have been denied a...
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Foreign nationals are required to have a work permit sponsored by an employer in Bahrain. The application for the work permit must be submitted to the Labour Market Regulatory Authority (‘LMRA’) using the online Expat Managem...
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Employers should retain copies of the employee’s passport, work permi...
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Employers can keep their records about unsuccessful job candidates provided that the individual has given consent in writing for his or her data to be processed and retained. ...
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Whilst there is nothing in the law that prohibits employers from asking any particular questions during interviews, they should nevertheless refrain from asking questions regarding the individual’s political or religious beliefs, sexu...
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The Bahrain Labour Law applies to all employees, who are defined as ‘natural persons working in return for a wage and under the employer’s management and supervision’. The concept of independent contractor does not expres...
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There are no key distinctions between employees who are blue collar/white collar/sales representatives under the Bahrain Labour Law. However, the Labour Law does not apply to domestic workers and persons regarded as such, including ag...
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There are two types of directors in Bahrain: (i) a company director who is officially appointed via a board or shareholders’ resolution and is listed in the company’s Commercial Register, and (ii) an employee simply having an o...
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Bahraini labour law does not address part-time or flexible working. As such, there is no prohibition or restriction on such arrangements, but employees do not have a legal right to request them. ...
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There are certain rules under the labour laws governing fixed-term employment. Fixed-term employment contracts automatically terminate at the end of the contractual period unless renewed by an express agreement between the partie...
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A fixed-term employment contract will convert into an indefinite-term contract in the following circumstances: if the employer and employee continue executing the employment relationship after the expiry of the fixed contractual�...
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The concept of a temporary worker does not exist in the Bahrain labour laws. Individuals engaged through an agency will not become the employees of the end user client unless there is an express agreement to this effect or the ...
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Bahraini labour law does not address secondments, although in practice they are not uncommon. While there are no restrictions in this regard for Bahraini employees, expatriate workers are restricted from working for third parties ot...
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A written employment contract is required and must be executed in duplicate, with one copy to be retained by the employer and the other to be given to the employee. The contract should be written in Arabic but can be written in another la...
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An offer letter is not required but is sometimes issued to support an application for a work permit for an expatriate employee. However, it is increasingly common now for an empl...
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The employment contract should be written in Arabic but can be written in a different language provided that an Arabic translation is included too. ...
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The employee’s statutory rights to leave such as annual leave and sick leave, the end of service gratuity, protection against unlawful termination, and other basic statutory rights are implied into the employment contract. Likewise, the...
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