AUSTRIA Law and Practice Contributed by: Johannes Edthaler and Christina Hödlmayr, Edthaler Leitner-Bommer Schmieder & Partner Rechtsanwälte GmbH
9. Dispute Resolution 9.1 Litigation
9.2 Alternative Dispute Resolution Agreements specifying a place of jurisdiction for future labour law disputes are only possible to a very limited extent. Only disputes that have already arisen can be brought before an arbitration court. Certain excep - tions also exist for managing directors and members of the executive board of a corporation for future indi - vidual employment law disputes. 9.3 Costs As a general rule, the losing party of a court case has to bear not only his/her own costs but also the costs of the other side. There are some exceptions to the general rule in labour law. Specifically, in disputes arising out of the works constitution, for the first two instances and in special declaratory proceedings, one’s own costs must always be borne, regardless of the outcome of the case (eg, in proceedings to chal - lenge a termination). It is only when the case reaches the Supreme Court that costs can be reimbursed.
In Austria, the regional courts have jurisdiction in the first instance for legal disputes concerning claims under labour contracts or company constitution law. In Vienna, the Labour and Social Court of Vienna has jurisdiction. The special feature of the composition of the court in labour and social court proceedings is that expert lay judges decide together with professional judges in all instances. The expert lay judges come from both the employers’ and the employees’ side. They are nomi - nated by the statutory professional or interest groups for five years. Lay judges from the employers’ and employees’ sides are always equally represented in the proceedings. In the first instance, there is no obligation to represent or advocate. If persons are unrepresented, the judge has a special duty to give instructions. A special fea - ture of labour law proceedings is that officials and employees may also be represented by the interest groups in court in the first and second instance. As such, the employer may be represented by the Cham - ber of Commerce, and the employee by the Chamber of Labour. There is no “class action” under Austrian labour law. However, under labour law it is possible for the works council (or the employer) to sue for a declaratory judg - ment on the existence or non-existence of rights or legal relationships affecting at least three employees of the establishment or enterprise. Such declaratory proceedings may, for example, concern questions of classification or claims to allowances. If a judgment is passed on the action for a declaratory judgment, it is only valid between the parties to the proceedings – ie, between the works council and the employer.
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