Instances of forced labour and human trafficking for labour exploitation have been found in various sectors in Austria, in particular the agriculture, construction, tourism, domestic work and the cleaning sectors are prone to exploitation.
According to a 2014 situation report by the Austrian Criminal Intelligence Service, sexual and labour exploitation were the main forms of exploitation prevalent in Austria. Labour exploitation was identified mostly in forestry, agriculture, construction and the domestic work sectors. These instances of labour exploitation mainly occurred in small-size companies.
In recent years, victims of exploitation had largely come from EU countries, with the majority from Romania, Hungary and Bulgaria. Non-European victims mostly come from Nigeria and China.
The Austrian definition of human trafficking is found in section 104a of the Criminal Code, and follows the international definition of trafficking introduced in the UN Trafficking Protocol.
The Jurisprudence has defined labour exploitation as the “ruthless exploitation of the vital interests” of a victim. A violation of the vital interests of a victim would occur in situations in which the victim has been subjected to excessive working hours, unacceptable working conditions or inadequate remuneration for long periods of time. Other relevant provisions in Austrian law penalising labour exploitation include section 116 of the Aliens’ Police Act, which punishes the exploitation of a foreign person being ruthlessly exploited, and section 28c of the Employment of Aliens Act, which penalises the employment of persons in Austria without a legal residence permit under certain exploitative conditions.
According to a report by the European Union Agency for Fundamental Rights (FRA) on severe labour exploitation, criminal prosecution of human trafficking in Austria has been relatively low, mostly due to difficulties securing sufficient evidence.
Under the Austrian Corporate Criminal Responsibility Act (CCRA), the criminal responsibility of a legal entity can be established by proving that a decision maker within the company or a staff member, under certain circumstances, have committed a criminal offence. These offences should be connected to the sphere of the legal entity, and the offence must have been committed for the benefit of the company. In cases in which the criminal offense has been committed by a decision maker, the law automatically assumes a violation of the company’s duty of care. In cases in which the offence has been committed by one or several staff members, the commission of the relevant offences must have been possible due to the negligent behaviour of a decision maker. In order to attribute criminal responsibility to the company, the decision maker’s failure to apply due and reasonable care must have made committing the offence considerably easier.
In practice, application of the CCRA is limited. State prosecution can decide to abstain from further prosecution after an assessment of the efforts needed for the investigation, the importance of the matter and the potential results, including the possibility that a conviction would be left ineffective due to bankruptcy.
Enforcement of labour standards
The labour Inspectorate in Austria is tasked with monitoring employment conditions and ensuring compliance with laws on occupational safety and health, including the treatment of workers, working conditions, building safety, etc. The labour inspectorate covers most workplaces, including within the public administration. However, self-employed workers and private households are not covered by the mandate of the Austrian labour inspectorates. Additionally, other public authorities also have the power to inspect workplaces. Based on the Anti-Wage and Social Dumping Act, public health insurance funds can monitor places in order to detect underpayment. In addition to this, there are specialised monitoring authorities for the agriculture and construction sectors.
The Anti-Wage and Social Dumping Act aims at ensuring equal working conditions and adequate wages for every worker in Austria. It provides that all employees should receive the minimum remuneration as defined in the relevant legislation, administrative acts or collective agreements.
Liability for non-payment of wages in subcontracting
In Austria, there are different legal options to hold principal contractors liable for unpaid wages in a subcontracting chain.
Firstly, the Austrian Anti-Wage and Social Dumping Act allows the possibility to hold contractors liable for wages unpaid by their subcontractors in the construction industry. Posted workers who are employed in one EU Member State but work in a different Member State can hold the contractor higher up in the chain in the receiving State liable for unpaid wages. However, the contractor is only liable if he knew that the employer (subcontractor) would not pay the wages, or if there were obvious signs indicating that the employer might not pay the due wages. A further provision of this Act would apply to all employees —not just posted workers— but the contractor would be held liable to pay unpaid wages of a subcontractor’s workers in instances in which the contractor has violated public procurement laws concerning subcontracting.
An additional legal path to hold contractors liable for unpaid wages of subcontractors or suppliers is via the Act on Combatting Social Fraud. The main contractor can be held liable for unpaid wages in cases in which the principal contractor knowingly used a bogus company as supplier or sub-contractor.
Finally, another legal option can be found in the Employment of Foreigners Act. In order to fulfil obligations deriving from the European Employers Sanctions Directive, this Act foresees that a principal contractor can be held liable for unpaid wages to undocumented workers by a subcontractor, if the principal knew that this subcontractor was unlawfully employing undocumented migrant workers. This provision applies across all industries and sectors. Furthermore, it is not necessary to prove that the contractor had knowledge about any potential exploitation of the migrant workers.
The legal research on Austria as well as this country profile has kindly been provided by the Ludwig Boltzmann Institute of Human Rights (Project on corporate liability for human trafficking, supported by funds of the Oesterreichische Nationalbank/Anniversary Fund).
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