European Restructuring Monitor (ERM)
Eurofound's ERM database on restructuring-related legal regulations provides information on regulations in the Member States of the European Union and Norway which are explicitly or implicitly linked to anticipating and managing change.
§ 96 ArbVG
LAST UPDATE 2023 - THIS CONTENT WILL NOT BE UPDATED
Video surveillance interferes with the fundamental rights to data protection and privacy. § 96 ArbVG regulates the necessity of the works council's consent when introducing control measures and technical systems for controlling employees, provided that these measures (systems) affect human dignity, in order for them to be legally effective. Without the conclusion of a corresponding work agreement, the use of such systems is against the law and the control devices must be removed by the employer.
Companies with works council
Control measures such as video surveillance at the workplace, GPS tracking of field staff or the recording of work performance by machines or work equipment, may only be used if the the owner of the company has reached a works agreement on the matter with works council. Otherwise, the control measure is against the law and the systems must be removed by the employer.
Companies without works council
In companies without a works council, such control measures may only be carried out with the consent of the individual employees. The consent should be given in writing and can be revoked at any time. It is possible to agree on a time limit.
For video surveillance to be possible, there must be a legitimate interest of the person responsible in the individual case that outweighs that of the person affected. In addition, the surveillance must also be proportionate in the individual case and no lesser measures may be possible.
Video surveillance does not have to be notified to the data protection authority, but it does have to be entered in the register of processing activities.
The General Data Protection Regulation explicitly states that persons whose personal data are processed must be informed about this. In addition, every employee has the right to information about the specific data held about him or her, about its origin, its links with other data and about any transfers.
In practice, video surveillance can be applied if it is necessary to protect persons or property in the business due to violations of rights that have already occurred (e.g., theft or damage to property) or a particular potential danger inherent in the nature of the location. Such a potential danger is always assumed, for example, in the case of tobaco stores, jewelry stores and banks. Therefore these stores are allowed to install surveillance and do so.
Control measures that violate human dignity are absolutely inadmissible. Such measures include, for example, secret tapping of telephone conversations, surveillance cameras in washrooms or toilet facilities, body searches as a rule, the examination of private life, etc. Due to the technical circumstances, the monitoring of e-mail and Internet use not only allows access to the connection data, but usually also monitoring of the content (content of the e-mails and the www pages selected). This typically affects human dignity and leads to a duty of consent on the part of the works council or the employee. The duty of co-determination does not depend on whether the private use of the Internet and e-mail is permitted or not. It applies in any case. For example, recently, the city of Klagenfurt dismissed the municipal director Peter Jost with immediate effect because he had illegally monitored the e-mail correspondence of city employees.
Eurofound (2023), Austria: Employee monitoring and surveillance, Restructuring legislation database, Dublin, https://apps.eurofound.europa.eu/legislationdb/employee-monitoring-and-surveillance/austria
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