Information to §109
PLEASE NOTE: The following statements have been carefully compiled and checked by labour-law experts - but the following applies: subject to all future interpretations by ordinary courts, implementation of the laws by the management of the University of Vienna within the framework of the autonomous decision-making options or misunderstandings by the authors of the following statements
Consecutive-contract (Kettenvertrag) regulation new from October 1st, 2021
The following explanations refer to the UG amendment 2021 (valid for employment contracts from October 1st, 2021) and specifically to §109 / sections 1 to 9 and §143 / sections 83, 84 and 85.
Explanation of terms that are not usually shown by name in the UG, but are used colloquially in all publications on employment relationships at universities:
Consecutive contract: A consecutive contract is the succession of fixed-term employment-contracts.
Prohibition of consecutive contracts: Prohibition of the factually unjustified succession of fixed-term employment relationships - this is Austrian and EU-wide labour-law and is based on the European Social Charter - §109 defines the technically permissible exceptions for the university sector.
Global budget employees are people with an employment relationship with the university, with funding from the university's own budget. For scientists, these employment relationships are defined in accordance with §26, §27, §29 and §30 in the collective agreement of the universities.
Third-party funded employees are people who have an employment-contract with the university, whereby the financing comes from the funds of a project according to UG §26 (“ad personam” projects = project management and responsibility with a real person; e.g. FWF projects) or according to UG §27 (project management at the university as a legal entity and project manager appointed / employed by the rectorate - external responsibility at the university).
Predoc positions are advertised for people who do not yet have a doctorate/PhD at the time the employment contract is concluded or for whom a doctorate/PhD is not required in the advertisement. Even if the doctorate is completed during the employment as a predoc, the position remains still a predoc position.
Postdoc positions are advertised for people who had a doctorate / PhD at the time the employment contract was concluded, provided that a doctorate / PhD is also required in the job advertisement.
Student employees are people who do not yet have a master's or diploma degree (MA, Mag.) in the field of use. The employment relationship is based on KV §30 (study assistant, tutor).
Lecturers, USI course-lecturer are people who are employed by the university exclusively in teaching and who do not have a permanent employment-contract with the university. In addition, lecturers are also persons with teaching assignments that go beyond their contractually stipulated teaching obligations ("all inclusive") in another employment-contracts (e.g. Predoc, Postdoc) with the university.
Permanent lecturers, USI instructors are people who are employed by the university exclusively in teaching and who have an unlimited employment-contract with the university.
External lecturers, external USI course-lecturer are people with a freelance contract (FD) according to §100 Para. 4 UG for the university. This means that these people have an employment-contract that does not fall under the protective provisions of labour-law and the “Kollektivvertrag”. Free service contracts are only permitted if the scope of teaching does not exceed four semester hours per week. The person concerned must also have a main income of at least €3330 / month (value 2021) from another employment-contracts. These persons are not subject to the restrictions of the consecutive-contract rule.
Contractors / freelancers are people who do not provide services as part of an employment-relationship (not employment-contracts) and are therefore not subject to the protective-provisions of labour-law. If there is a personal dependency in the sense of being bound by instructions for the fulfillment of the task, there is an employment-relationship that is subject to the KV.
Permanent employment is the conversion of a fixed-term employment relationship into a permanent employment relationship. A permanent contract only applies to the employment relationship for which it was granted - the permanent contract has no effect on other employment relationships (for example, permanent lecturers cannot accept project employment for the maximum period of a possible fixed-term contract because this only applies to the work as a lecturer).
Regulations on time limits.
The new version of §109 UG to regulate fixed-term employment relationships came into force on October 1st, 2021 and contains three significant changes compared to the previous legislation.
· There is no distinction between full-time employment and part-time employment when calculating the maximum employment period for a fixed-term employment-contract (judgment of the ECJ C-274/18: prohibition of discrimination).
· The previous practice of interrupting and repeating the maximum duration of fixed-term employment through a "break" (absence of an employment-contract for a certain period of time - usually one year) may no longer be practiced. All positions at a university are capped with a maximum (see below).
· Once the maximum is reached, further employment at the university is only possible with a permanent contract. However, the maximum level can be repeated at another university.
In the future, the admissibility of fixed-term contracts will be determined by two key parameters: Duration and number of employment-contracts.
A. Duration of employment:
An employment-contract is limited to a maximum of six years.
Repeated fixed-term contracts may now not exceed a total of eight years, regardless of the timing and sequence - regardless of the interruptions and the sequence of the employment-contracts, except contracts as global budget employees, because those are limited with the sequence of three contracts (see below).
· These eight years do not include: temporary employment as a student assistant (max. four years) and/or as a Predoc in the global budget if the doctorate is also part of the employment-contract. At the University of Vienna, a maximum of four years allowed for a Predoc-Position.
· The "ideally typical" maximum fixed-term contract would therefore be four years as a Predoc followed by eight years (as explained, even if the course is not continuous), for example a Postdoc-position or a position as a lecturer. For lecturers, the period of eight years is eight years of study (“Studienjahre”).
· The maximum duration for substitute-employees (“Karenzvertretung”) is six years without any limitations of frequency of contracts.
B. Number of employment-contracts:
· A maximum of three fixed-term employment relationships may be entered into for global budget employees (= two extensions, but the exceptions above for Predocs and student employees are not to be considered!).
· In the case of third-party employees, substitute staff and lecturers, the number of fixed-term employment-contracts in the possible fixed-term period is not limited as before.
C. Inclusion of times before October 1st, 2021:
All minor, part-time and full-time employment relationships that existed at the University of Vienna before October 1st, 2021, with or without interruption, are to be counted towards the maximum permissible limits for the duration and number of temporary employments, both in the area of academic and also in the area ofgeneral university staff (including those as lecturers) (exceptions see below).
Parallel employment-contracts do not add up, they are only counted once. Example: A project employment of four years with a parallel employment as a lecturer results in a calculation period of four years.
For the calculation of the number of employment relationships, seamless extensions also count as (additional) parts - unless it is an extension of an existing employment relationship - recognizable by the "addendum to the employment contract".
D. Exceptions in the transition period from October 1st, 2021
(§143 para. 83, 84 and 85 UG):
1. Lecturers
· Eight study years are available for lecturers who sign a new employment contract after October 1, 2021. Previous employment relationships with the University of Vienna, regardless of their use, are not considered.
· If you start on October 1, 2021 and are continuously employed, the lecturer contract must be extended on August 31, 2029 so that teaching at the University of Vienna can continue. Otherwise, the following applies: A total of eight academic years may be taught after the academic year with the first lecturer apprenticeship if the start is after October 1, 2021. The following facts should also be noted:
· An academic year in the sense of the employment relationship lasts from September 1st to August 31st of the following year. If a teaching assignment of any duration is accepted during this period, the entire academic year is considered relevant for the calculation of the maximum temporary employment period, i.e. "used up" for the calculation of the maximum temporary employment period, even if there was only a one-semester teaching assignment in an academic year.
· The calculation of the duration of the fixed-term employment relationships with lecturers is made without prejudice to other employment relationships at the university, as these are separate employment relationships.
· All teaching assignments held by persons with their own contract are subject to the rules for lecturers. For example, permanent lecturers and other permanent employees such as senior scientists, senior lecturers, federal employees, professors or members of the general staff who also have a contract as lecturers.
2. Externally funded employees:
If an employment-contract is concluded primarily for the implementation of third-party funded projects or research projects, periods of up to four years in such an employment relationship before October 1st, 2021 are not to be counted towards the maximum limit of eight years
Examples:
Anyone who has had exactly four years of employment in a third-party funded project by September 30, 2021 can remain in a temporary third-party funded position for a further eight years from October 1, 2021, if there is no permanent contract after that.
Anyone who has already spent a total of 12 years in project employment in the last "decades" (from January 1st, 2004) can only continue to be employed on a temporary basis through third-party funds after deducting the four years from October 1st, 2021 if a deduction can be made from the remaining eight years because of a predoc position. In order to remain at the University of Vienna, a permanent extension would be necessary.
Anyone who had a six-year postdoc position as a global budget official and a two-year postdoc position in a project by September 30, 2021 can be employed in a project for a limited period of two years from October 1, 2021 -If you were employed as a global budget official and return to the university after October 1, 2021, you can still be employed for a limited period of two years if there is no permanent contract after that, because only project times are not taken into account.
Anyone who has had a two-year job as a study assistant (= student assistant) and four years as a global budget predoc (doctoral studies do not count) and then worked as an editor for six years and during this period also had a four-year project job at the same time can be employed for a further two years on a fixed-term basis, if there is no time limit thereafter. The project employment (when completing a new project) would not count, but the extent of the six years as a lecturer is considered.
Anyone who completed a dissertation / PhD before October 1, 2021 and was employed as a postdoc in a project for four years can be employed at the university as a third-party funded employee for a limited period of time after October 1, 2021 - the total employment period would then be 16 years, if there is no permanent extension thereafter.
3. Special rules for employment relationships as a Predoc
According to Section 109 Paragraph 7, employment-contracts that also include the completion of a doctorate are not considered for up to four years for the maximum permissible total duration and the maximum permissible number of employment relationships. The employment relationship had to be related in terms of content to a doctorate/PhD degree. During the period of employment, it must be possible to prove that a dissertation/PhD was being worked on – e.g. a completed dissertation agreement.
This exemption means that you can be employed at the university as a predoc for a maximum of four years and then as a postdoc or in another employment relationship for up to 12 years. Four years of predoc periods are also not included in the maximum number of employment relationships. Whether the doctorate / PhD is completed is irrelevant for the calculation. If further years follow as a predoc, these additional years are included in the calculation of the maximum permissible total duration. The number of subsequent employment relationships financed from the global budget must not exceed the sum of three employment relationships. Employment in the third-party funded area, as a substitute or in teaching are not subject to quotas based on the number of employment relationships.
4. Student employees
Times as student employees, which are limited to four years according to KV §30, are not considered for the calculation of the maximum employment period in a later fixed-term employment relationship. However, it should be noted that e.g. B. also a minor employment of students outside the type of student assistant, for example as part of a third-party funded project (employment according to KV §28) or in general staff as a "side job" for the calculation of the maximum limit of a temporary employment is relevant.
5. Existing employment-contracts:
If there was an active employment-contract before October 1, 2021 that went beyond this date, or if an existing employment relationship was extended without changing the assignment (e.g. as a project employee in the same project), the "old legal situation" applies for this period. However, after the end of this employment-contract and the person concerned has not been given a permanent contract, the legal situation with effect from October 1, 2021 must be applied.
6. Vacancies
Freelance employment-relationships - work contracts - "freelance employment relationships" are not "real" employment-contracts and do not count for the "consecutive " even after October 1st, 2021. The rules for such an employment relationship must be observed (see there).
7. Interruption of employment of temporary employee
In the case of new contracts from October 1, 2021, it is no longer possible to repeat the "consecutive after a one-year break”, since all employment-contracts at one university must be added.
The exceptions regarding times before October 1st, 2021 are detailed above.
Employment-contracts at different universities are considered separately and therefore do not influence each other. Labour-law limits are to be considered independently for each university.
Due to the numerous legal uncertainties resulting from the UG amendment 2021, we as a works council can recommend you to be a member of the trade union (GÖD), because as a union member you are granted legal protection in court.