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Austria has not implemented since 2010 such judgments based on EU law, criticized the president of the Chamber of Labor, Johann Kalliauer.
The ECJ decided that simply because the employee had not requested leave, the right to paid annual leave at the end of the employment relationship should not expire automatically and should always be paid. In that case, two cases in Germany were referred to the ECJ by national courts. He pointed out that the employee was the weakest part compared to his boss. As a result, he might be deterred from insisting on his right to a vacation. The leave or a corresponding payment of compensation under EU law may only expire if the employer can prove that he has correctly informed his employees and that he has been able to take this leave, but has voluntarily given up.
The President of the Upper Austrian Chamber of Labor stresses that the judgment concerns the European Charter of Fundamental Rights and states that employees can enforce rights established against diverging national laws. This charter also includes the directive on the working time of the law of the Union, which is also mentioned in the reasons of the judgment. Thus, the ECJ has stated in the Labor Chamber that employees can badert their right to vacation against their private employer because of the primacy of the Charter of Fundamental Rights over national law.
For Kalliauer, for example, previous judgments in Austria are obsolete. He cites, for example, a Supreme Court decision (OGH) that spending part-time full-time can devalue full-time and indeterminate work, although this is unacceptable after the decisions of the ECJ. In that case, the reasoning of the Supreme Court had stated that the EU directive did not apply to a private employee. Another provision of the Austrian Holidays Act has the effect that employees lose the right to unpaid holidays if they leave the company unfounded. Here too, the ECJ has already decided differently on a number of occasions. According to the AK-President, "we can look forward, that the Austrian legislator is now active or, as before, let the work to justice".
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