Employment law framework
- Relocation clause and job description are decisive
Unilateral relocation of new tasks or positions is permitted only if it is covered by the employment contract. This coverage in the employment contract can be achieved either through a broadly formulated job description or, if there is no such description, by using a transfer reservation in the employment contract. The relocation clause gives the employer the right to assign employees to other tasks or positions as long as these are reasonable for the employees. But what does "reasonable" mean? Various factors must be considered, such as the employee's training and professional experience, the nature of the new tasks, and the working conditions. If there is no employment contract cover, employees must explicitly agree to a career change. It is therefore crucial to revise job descriptions regularly and to include the most flexible transfer clauses possible in standard employment contracts.
- The works council is essential
Another important aspect is the co-determination of the works council (if existing). According to the Austrian Labor Constitution Act, the works council has the right to information and consultation when new tasks or positions are transferred. If the career change leads to a decline in employees' pay or working conditions (e.g., increased physical/mental strain, longer travel to work, etc.), the works council's consent must be obtained in advance. This applies even if employees expressly agree to take on new tasks or positions.
Obligation to attend training courses
But do employees even have to take part in training courses with the aim to "upskill" or "reskill"? The answer is yes, if the training is necessary for fulfilling contractual obligations or adapting to new technologies or processes. Participation is also mandatory if regulated expressly in the employment contract or a company agreement. It is therefore particularly important for companies to draft employment contracts with foresight and to contractually stipulate an obligation to participate in any future "upskilling" and "reskilling" measures.
Consequences of refusal
If employees refuse to accept lawfully assigned new tasks or positions, this can have serious consequences. Under certain circumstances, refusal can be considered a gross breach of duty and lead to ordinary termination or even immediate dismissal. A practicable "middle way" to persuade employees to agree to further professional development is to give notice of termination with a change of contract. This termination only becomes effective if consent is not granted within a certain period of time. Compared to a "ordinary termination", it is usually associated with a significantly lower legal risk.
Summarized recommendations
- To facilitate the implementation of upskilling and reskilling, it is advisable to formulate job descriptions and employment contracts that permit the unilateral assignment of new tasks or positions.
- Employment contracts should also contain training clauses that oblige employees to upskill and reskill if necessary.
- In addition, companies should communicate transparently which opportunities for further training and retraining are offered to strengthen employees' confidence in the change process.
- A legally founded and transparent implementation does not only promote the individual development of employees, but also the long-term stability and flexibility of the company.
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