Austria: Limitation of vacation entitlements

 

The issue of leave and the right to leave is often the subject of conflicts between employer and employee.

Last year, the Supreme Court dealt with the statute of limitations for vacation entitlements on the basis of an ECJ decision, which resulted in a better position for employees, which employers will have to observe in the future.

According to the applicable Leave Act, the employee's holiday entitlement must be agreed between the employee and the employer. According to Austrian law, the holiday entitlement is generally time-barred within two years from the end of the leave year in which the leave arose. Open leave entitlements can be carried over to the next leave year as long as they are not yet time-barred. The employee has three years to consume his vacation.

According to the decision of the Supreme Court (8 ObA 23/23z), however, the holiday entitlement secured under EU law is only time-barred if the employer has requested the employee to use up the holiday entitlement and has pointed out that the holiday entitlement is time-barred. With this decision, the Supreme Court follows the employer's obligations to request and inform as set out by the ECJ. If the employer does not comply with its obligations to request and inform, the employee's holiday entitlement does not become time-barred and can therefore also be consumed during the ongoing employment relationship. Upon termination of the employment relationship, the vacation that is not time-barred or used must be taken into account and paid out as part of the vacation replacement benefit.

It should be noted that the violation of the duties to request and inform only suspends the limitation period of four weeks for the holiday entitlement secured under EU law. The leave in excess of this, i.e. the fifth or sixth week of leave, continues to be time-barred two years after the end of the leave year.

To ensure that vacation entitlements are not accumulated over years, the initiative should also come from the employer. According to the ECJ, the employer should ensure that the employee is actually able to take his paid annual leave. In any case, the measures taken by the employer to comply with the obligation to request and inform should be sufficiently documented.

 

For further information, please contact:

Franziska Eckerstorfer, Lawyer

Zumtobel & Kronberger, Salburg

e: office@eulaw.at

t: +43 662 624500

 

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