Actual status of gender legislation in Austria

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EUROPEAN WEEKS FOR GENDER EQUALITY - EDUCATION
SPORT"

• Actual status of gender legislation in Austria
• Mag.a Anna Kleissner
• Presentation at the International Seminar on
  Methodological aspects 21 23 of January 2005,
  I H S, Vienna

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International Agreements (I)

• Agreement with the International Labour
  Organisation (ILO)
• ILO-Agreement Nr. 100 refers to equal pay for
  equal work for male and female employees
• ILO-Agreement Nr. 111 about the discrimination in
  employment and work
• Convention for the abolishment of all forms of
  discrimination of women (CEDAW)
• Treaty establishing the European Community
  principle of equality of payment
• Art. 2 EGV
• Art. 3 Abs. 2 EGV
• Art. 13 EGV
• Art. 137 Abs.1 lit. i EGV
• Art. 141 EGV

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International Agreements (II)

• Council Directives
• RL 75/117/EWG (equality of payment)
• RL 76/207/EWG (equal opportunities)
• RL 79/7/EWG (equal opportunities social
  security)
• RL 86/378/EWG (company pension)
• RL 96/97/EWG (modification of company pensions)
• RL 86/613/EWG (equal treatment self-employed)
• RL 92/85/EWG (maternity protection)
• RL 96/34/EG (paid leave given to mother/father)
• RL 97/80/EG (burden of proof)
• RL 97/81/EG (part-time work)
• RL 2000/43/EG (anti-racism)
• RL 2000/78/EG (regulatory framework)
• RL 2002/73/EG (modifications/alternatives for
  equal opportunities)

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Constitutional Law (I)

• EQUALITY CLAUSE
• Art. 2 StGG
• All citizens are equal before the law.
• Art. 7 B-VG
• All citizens are equal before the law. Privileges
  of birth, gender, status, class and denomination
  are ruled out. Nobody may be discriminated
  because of a personal handicap. The Republic
  declares to ensure equal treatment of handicapped
  and non handicapped people in all aspects of
  life.
• Federation, provinces and communities declare the
  equality of men and women. Measures supporting
  the equality of men and women are admissible, in
  particular measures taken to eliminate existing
  discrimination.
• Official titles can express the gender of the
  office-worker. The same can be applied to titles,
  academic degrees and job titles.
• Civil servants including members of the Austrian
  Armed Forces are guaranteed their political
  rights without restriction.

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Constitutional Law (II)

• Article 14 European Convention on Human Rights
• The benefits of the rights and privileges put
  down in the convention must be guaranteed,
  without discrimination particularly pertaining to
  gender, race, language, religion, political
  points of view, nationality, social background or
  status of birth..

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Laws on equal opportunity and treatment of women

• The Federal law on equal opportunity of women in
  civil service (Bundes-Gleichbehandlungsgesetz,
• B-GlBG)
• The Equal Opportunity/Treamtment Law for the
  private sector (Gleichbehandlungsgesetz, GlBG)
• State law on the commission for equal opportunity
  and treatment (Bundesgesetz über die
  Gleichbehandlungskommission und die
  Gleichbehandlungsanwaltschaft, GBK/GAW-Gesetz)
• State law on equal treatment and opportunity
  (Bundesgesetz über die Gleichbehandlung, GlBG)
• Provincial laws for equal opportunity and
  treatment

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The Federal law on equal opportunity/treatment
of women in civil services (I)

• Refers to equal treatment of women and men
• Since March 1993
• Applies to
• Employees with a Federal contract under public or
  private law
• trainees
• Women in training with the Austrian Armed Forces
• Other types of trainees
• Applies to
• Establishing and termination of employment or
  training
• Determination of payment
• The granting of voluntary social benefits
• Departmental measures for internal and external
  human resources development
• Career prospects
• Other working conditions

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The Federal law on equal opportunity/treatment
of women in civil services (II)

• Discrimination
• a differentiation that has no factual
  justification and puts a person at a disadvantage
• Sexual harassment discrimination because of
  gender
• Gender-related harassment discrimination
  related to gender, but without sexual connotation
  (manifestation mobbing, emotional abuse at the
  workplace)

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The Federal law on equal opportunity/treatment
of women in civil services (III)

• The law includes
• Direct discrimination
• Direct discrimination women and men are clearly
  treated differently because of their gender
  without factual justification
• Indirect discrimination
• Indirect discrimination measures and actions
  taken by the employer resulting in a person of
  either gender being put at a disadvantage

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The Federal law on equal opportunity/treatment
of women in civil services (IV)

• In addition to the
• Principle of equal opportunity
• there is also the
• Principle of promotion of women
• Elimination of existing under representation of
  women compared to the total number of permanent
  employees
• Elimination of discrimination of women in
  connection with the contract of employment
• Measures to be taken to serve this purpose
• Development of measures for the promotion of
  women
• Women have priority when taking part in
  vocational training schemes and when qualifying
  to take over higher-value positions
• Women have priority in employment and promotion
  if they are underrepresented

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The Federal law on equal opportunity/treatment
of women in civil services (V)

• Consequences provided by the law
• Compensation for material damage
• Compensation for immaterial damage
• Period of time for commencement of action 12
  months
• Persons affected have to present plausible facts
  that discrimination has taken place
• The defendant has to provide proof that
  discrimination has not taken place

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The Federal law on equal opportunity/treatment
of women in civil services (VI)

• Concerned with implementation
• Federal Commission for equal rights
• Representative for equal rights (for each
  department)
• Working groups dealing with questions concerning
  equal rights (at universities, art colleges,
  colleges,)
• Other working groups dealing with questions
  concerning equal rights
• Working groups consisting of representatives of
  different ministries/departments
• Contact women

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Equal treatment law / Private Sector

• Since 1979
• Supplemented and amended within the framework of
  EC-Guidelines
• Since 1.7.2004 regulated by 2 laws
• Federal law concerning equal opportunity
  (Bundesgesetz über die Gleichbehandlung, GlBG)
• Federal law concerning the equal rights
  commission (Bundesgesetz über die
  Gleichbehandlungskommission und die
  Gleichbehandlungsanwaltschaft (GBK/GAW-Gesetz)
• Objective workplace should be free of
  discrimination
• Additionally establishment of regional offices
• Advise and support for people who are
  discriminated against because of their gender
• Investigate discrimination in companies
• Demand written statements and information

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Provincial laws on equal opportunity

• Within the purview of the laws
• Female and male provincial and municipial
  employees
• Implementation of the following laws
• Burgenländisches Landes-Gleichbehandlungsgesetz
  (Burgenland)
• Kärntner Landes-Gleichbehandlungsgesetz
  (Carinthia)
• Niederösterreichisches Landes-Gleichbehandlungsge
  setz (Lower Austria)
• Oberösterreichisches Gemeinde-Gleichbehandlungsge
  setz (Upper Austria)
• Oberösterreichisches Landes-Gleichbehandlungsgese
  tz (Upper Austria)
• Salzburger Gemeinde-Gleichbehandlungsgesetz
  (Salzburg)
• Salzburger Landes-Gleichbehandlungsgesetz
  (Salzburg)
• Steiermärkisches Landes-Gleichbehandlungsgesetz
  (Styria)
• Tiroler Gemeinde-Gleichbehandlungsgesetz (Tyrol)
• Tiroler Landes-Gleichbehandlungsgesetz (Tyrol)
• Vorarlberger Gemeindebedienstetengesetz
  (Vorarlberg)
• Vorarlberger Landesbedienstetengesetz
  (Vorarlberg)
• Vorarlberger Landes-Frauenförderungsgesetz
  (Vorarlberg)
• Wiener Landes-Gleichbehandlungsgesetz (Vienna)

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Law governing the universities organisation

• Equal treatment and opportunity for women and
  men in universities anchored in the leading
  principles ( 1 (2) UOG)
• Schemes for the status upgrading
• Upgrading of qualification for women
• Promotion of women's status as far as
  scholarships and means for research and teaching
  are concerned
• Coordination office for research on womens
  issues and gender studies
• Steps taken to provide substitute employees for
  female/male clerks and university assistants
  during maternity leave
• Incentives and sanctions (to achieve success)

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Sexual harassment at workplace (I)

• Regulated in
• 2 Abs. 1a Gleichbehandlungsgesetz (law on equal
  opportunity for women)
• 8 Abs. 1 Bundes-Gleichbehandlungsgesetz
  (Federal law on equal opportunity for women)
• The discrimination ban is addressed to
• employer
• and representatives of the employer
• and refers to sexual harassment
• Committed by the employer and
• if no measures are taken against harassment by a
  third party (colleagues, superiors,
  customsters,)
• 3 elements in an offence
• Behaviour belonging to sexual sphere
• Damage of a persons reputation
• Behaviour which is unwelcome, misplaced,
  inappropriate and/or offensive and thus
  recognizable as sexual harrasment

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Sexual harassment at workplace (II)

• Legal consequences pertaining to sexual
  harassment
• Claims to adequate compensation of at least 720
• From the molester as well as
• The employer if remedy has not been taken
  culpably
• Proof of discrimination
• Person affected must present believable facts
  that show discrimination
• Defendant must give evidence that there was no
  discrimination
• Annoyance (? sexual harassment) takes place
  without sexual
• connotation

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Equality in family life

• 1975 Reform Act of Family Law
• Federal law on the legal consequences of marriage
• Elimination of patriarchal model of marriage
• Obligation of the spouses to arrange housekeeping
  and gainful employment by mutual agreement
• 1978 further reforms concerning paternal
  authority and the representation of children
• Further regulations (by law)
• Civil law (ABGB) equal rights and obligations
  for the spouses, respectively father and mother
• Civil law (ABGB) 139 in the case of different
  family names the child holds the agreed name if
  there is no agreement the child is given the
  fahters name (still direct discrimination!)
• Law on the right to the use of a name spouses my
  keep their own family name (step towards
  equality)

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Protection against family violence (I)

• Different forms of violence
• personal violence (committed by a offender)
• socially induced violence (inherent in the
  social structure)
• Unequal balance of power
• Unequal opportunities
• Legal basis
• Law on protection against violence
  (Gewaltschutzgesetz, 1997)
• Amendment to the involvement of the law/police
  (Sicherheitspolizeigesetz-
• Novelle, 1999)
• Exekutionsordnungs-Novelle, 2003)
• Measures
• 1. Order to leave the shared dwelling
  (short-term)
• 2. Ban from entering
• 3. Long-term order to vacate the premises

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Protection against family violence(II)

• Temporary order to leave the shared dwelling /
  ban from entering
• It is to be assumed that a threat to life, health
  or freedom is intended
• Protected persons anyone residing in the
  dwelling
• Regardless of ownership
• The keys of the person are taken away who
  constitutes danger
• Protection area dwelling and surrounding
  vicinity
• Period of time maximum of 10 days
• Long-term standing order
• Further living together with the victim means
  unreasonable hardship but there is urgent need of
  accommodation
• Court can order the adverse party to leave and
  not enter dwelling
• Period of time maximum of 3 months (possibility
  longer if legal proceedings (family law) have
  been started)
• Other measures
• Womens refuges
• Advice centres

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Health Insurance

• Working women
• Health insurance based on employment
• Payments/benefits in the case of motherhood
• Costs/expenses during delivery
• Costs of hospital
• Maternity grant as substitute income for the time
  of prohibition of employment according to the
  maternity protection act
• Not working women
• Co-insurance family members of a compulsorily
  insured person are entitled to benefits (wife,
  common law spouse, daughter)
• Voluntary insurance
• Payments/benefits in case of motherhood
• Costs/expenses during delivery
• Costs of hospital
• NO payment of maternity grant

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Old Age Benefits

• Includes
• Retirement pension / Retirement pay
• explicit legal difference between men and women
  concerning age
• Men 65 years (early retirement 60 years)
• Women 60 years (early retirement 55 years)
• Pension because of ones inability to practise
  ones profession
• After the death of the husband his wife is also
  entitled to the pension, if the writing period
  has been covered and she is 55 years of age and
  has 4 children (live birth)
• Surviving dependants pension

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Accident Insurance

• No differences concerning gender in this field
• Demands
• Inclusion of household as source of danger to be
  covered by accident insurance
• Acknowledgement of family work as being of public
  interest for the national economy (combined with
  claims to social security)

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Pregnancy/Maternity Protection

• central part of the special labour protection
  law for women
• Protection against dangers
• Prohibition of employment for expectant and young
  mothers
• Absolute prohibition of employment during period
  of protection
• Individual prohibition of employment and work
  (depending on the fitness to work)
• Prohibition of night work
• Prohibition of work on sun- and holidays
• Prohibition of overtime work
• Protection of payment
• Claim to maternity grant
• Excessive/large financial disadvantages should be
  prevented
• Protection against dismissal
• Particular protection against dismissal
• Complete list of reasons that justify dismissal

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Maternity leave for both parents /child care
benefit

• Maternity leave also possible for granted to
  fathers
• Maximum length of maternity leave (as desired by
  father or mother) extended to the second
  birthday of the child
• Parents may change once in taking the maternity
  leave
• Part time work up to the 4th birthday of the
  child on agreement with the employer
• The introduction of the child care benefit was
  another step towards compatibility of work and
  family
• Child care benefit 14,53 Euro daily
• Maximum period of 3 years
• Limit of additional earnings 14.600 a year

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Contact Mag.a Anna Kleissner ESCE, Economic and
Social Research Center Marktstrasse 3, A-7000
Eisenstadt Phone [phone] Mail
anna.kleissner_at_esce.org