I have an employer

An employment contract can be concluded for a set term or for an indefinite period.

As an employee, you owe your employer your diligent work performance. You do not have to achieve a specific result, as is the case with a contract for work and labour. 

In order to know whether you are working as an employee, you must check whether you are working in personal dependency. This means that it is not you but your employer who decides where you work, what your working hours are, and what your work-related behaviour should be. The following characteristics are decisive:

• You are integrated into the operational organisation and hierarchy of your employer(s);
• Your employer can give you instructions; you must follow them (obligation to follow instructions);
• You are obliged to carry out the work yourself and cannot provide a substitute (personal obligation to perform);
• Your employer can control whether and in what form you carry out your work (subject to control);
• As an employee, you have disciplinary responsibility.

The characteristics can vary in intensity. It is a flexible system. What is important is whether personal dependency predominates in the overall assessment. 

In the case of an employment relationship, for example, free time management or working from home can be agreed upon. However, if employees can generally be substituted and actually exercise this option, this is not an employment relationship because there is no personal dependency whatsoever.

When artists, such as singers, musicians, or actors 

• work according to fixed rehearsal and performance schedules,
• commit themselves for one season,
• follow the instructions of the director or the conductor regarding the number of rehearsals and rehearsal times, and
• are bound by the type of work performed,

it is usually an employment contract.

For these reasons, orchestra, choir, and ballet ensemble members who regularly work at the same venue are generally to be qualified as genuine employees. Musicians who are responsible for the evening entertainment at a holiday club several times a week for a period of three months with a partly predetermined repertoire are also to be qualified as genuine employees.

Example: You work as an actor at a theatre. You must attend rehearsals and performances at certain times from February to June and follow the director’s instructions. You are a salaried employee on the basis of an employment contract and are therefore not self-employed.

Example: You are an author and are invited to read from your novel at the Künstlerhaus on 28^th February. You are free to organise the content of the reading (which passages you read and how you present them). Although the place and time are precisely defined, you are not integrated into the company. At most, your client can give you factual instructions, but not instructions regarding content. This is not an employment contract, but a contract for work and labour. You are therefore self-employed. 

 

Labour law entitlements

Artists and cultural workers in employment relationships are generally bound by labour law.

There are special labour laws for certain industries. For example, special working time regulations apply to people who work in theatres. These are regulated in the Theatre Employment Act (TAG). The interest group IG Freie Theaterarbeit published an information brochure on this in 2015.

If there is a collective agreement for the sector in which artists and cultural workers are employed, their employers must comply with the minimum standards stipulated therein.

• There is no statutory minimum wage in Austria. Instead, the organisations representing the interests of employees in the respective sector (trade unions) negotiate with the organisations representing the interests of employers. In these negotiations, they agree on a collective agreement for the respective industry. This sets minimum standards—and also a minimum wage rate—for the industry: regardless of citizenship or any membership in a trade union. The collective agreement to be applied therefore depends not only on the activity, but also on the employer’s industry and thus their trade licence.
• However, many (smaller) organisations (e.g. cultural associations) are not subject to collective agreements. There are therefore no minimum standards for them. For this reason, great attention has been paid in recent years to the development of separate fair-pay systems for the cultural sector. Guidelines on how artists and cultural workers should be fairly remunerated have been developed for employment in various fields of art. For detailed information, visit the Austrian Cultural Council’s website or the Interessengemeinschaft für Kultur’s homepage.
• The employer must disclose the collective agreement applicable to their organisation Click on this link to view all the relevant collective agreements for artists working in Austria. The following are some of the most important collective agreements for artists:
  • Collective agreement for musicians
  • Collective agreements for the staff of federal theatres
  • Collective agreement for film professionals

In addition, minimum standards can also be laid down in works agreements. A works agreement is an agreement between the company you work for and its works council. The works council is elected by the employees and represents their interests vis-à-vis the employer.

How your labour law entitlements are regulated in detail therefore depends on whether special labour laws apply to your employment relationship, whether there is a collective agreement for your industry, and whether your company has concluded a works agreement. Typically, you are entitled to the following benefits:

• Minimum wage;
• Overtime allowances;
• Special payments;
• Continued payment of remuneration in the event of incapacity to work;
• Public holiday pay;
• Holidays and holiday pay.

 

Freelance contracts are not defined in a law, but in practice they can be categorised as a mixture between a contract for work and labour and an employment contract. The difference between this and an employment contract is that freelancers perform their work independently.

In contrast to a contract for work and labour, you are not obliged to provide a specific one-off result, but rather deliver diligent, long-term work performance. 

However, unlike with an employment contract, you can also organise the course of your work independently and without being bound by instructions. Characteristics of service delivery without personal dependence include

• Independence in terms of working hours, place of work, and behaviour at work;
• No powers of control for employers;
• Only loosely integrated into the company;
• You can be substituted;
• You can refuse work.

Example: You are a proofreader or playwright and can provide pre-defined services based on a specific assignment without having to adhere to set working hours or a designated work location.

 

Labour law entitlements

Freedom of contract applies when concluding a freelance contract. This means that contractual conditions and special services can be freely negotiated. 

Attention: There are no collective labour agreements for freelance contracts and works agreements do not apply.

As a freelancer, you have no entitlements under labour law. You are therefore not entitled to holidays, continued payment of wages in the event of illness, collectively agreed wages, or special payments. However, these benefits can be contractually agreed. 

• If you do not receive a written (freelance) contract and your activity lasts for more than one month, your contractor is obliged to provide you with a service note at the start of your engagement, which contains all the essential rights and obligations arising from the contractual relationship.
• Your contractor must pay a monthly amount for you into a provision  fund ("new severance pay"). These accumulated amounts are paid out upon termination of the working relationship. It does not matter by whom and for what reason the working relationship is terminated.
• The employment prohibitions in the Maternity Leave Act (MSchG) apply to pregnant women and mothers. 

If you and your contractor have not reached an agreement on notice periods, the termination provisions for employees apply:

• The contractual relationship may be terminated by the employer on a quarterly basis unless a more favourable agreement has been reached for the freelancer. Notice of termination can be agreed to take effect on the 15^th or on the last day of the month.
• The notice period to be observed by the employer increases with the duration of the freelance relationship. These are as follows: six weeks in the 1^st and 2^nd year of service, two months from the 3^rd year of service, three months from the 6^th year of service, four months from the 16^th year of service, and five months from the 26^th year of service.
• As a freelancer, you can terminate your working relationship by giving one month's notice as per the last day of each calendar month.
• If there is a compelling reason, you can terminate your freelance employment contract at any time without notice. 

Attention: Freelancers are compulsorily insured for pension, health, accident, and unemployment in the same way as salaried employees. However, this does not apply to freelancers who essentially work with their own resources (like many artists) and are therefore insured as "new self-employed" people. There is also an exception for artists within the scope of the Artists' Social Insurance Fund Act. See the chapter on social security.