Statement of Active Unemployed Austria to the Committee on ESC Rights – CESCR: Session 51
Geneve, November 18th 2013
by Martin Mair
Chairman of Active Unemployed Austria
As representative of the association 'Active Unemployed Austria' I would like to draw your attention to a key topic, namely sanctions and the right to freely choose work. Since the turn of the century, this fundamental right has been severely limited especially as a result of the high rise in unemployment.
Along with the change of government at the beginning of 2000, the employment agency has been putting increasing pressure on unemployed persons by order of the new conservative government. They have done so by imposing additional benefit sanctions upon unemployment insurance. The sanctions quota rose in the year 2000 from previously around 230 per 1,000 unemployed clearly to 288 per 1,000 unemployed. This sanctions quota has continued to rise throughout the course of further changes of government, reaching up to 405 sanctions per 1,000 unemployed persons by the year 2010.
As of January 1st, 2005, the government has restricted so-called 'vocational protection' to the first 100 days of unemployment and replaced it with a restricted wage protection. 'Vocational protection' in Austria means only that employment agency can't force you into a job in another vocation if “it will make future employment in the previous work much more difficult”. After the unemployment benefit ends – usually after 6 months – unemployed get 'Notstandshilfe' (unemployment assistance) and must accept every type of 'reasonable' job, regardless if it fits with one's own career aspirations or – especially in case of part time jobs – regardless if it saves cost of living.
Since 2007 even work programs in socio-economic employment company as well as non-profit employment projects are considered to be 'reasonable'. Instead of the regular collective agreements of the respective industry these projects only pay low flat-rate salaries without the consideration of previous work experience or qualifications. 'Work trainings' and 'work testings', were people only get their unemployment benefits as salaries, are also considered to be 'reasonable'.
According to the administrative court, unemployed persons must show active conduct and abstain from any behavior which could appear to objectively hinder you from entering an employment relationship. This means that if you wish to negotiate your working conditions or, for example, wish to be offered a pay raise, or different working hours, or even wish to refer to the offered job as an interim solution, you risk being denied your unemployment payments. The right of freely chosen work in this way is reinterpreted as the duty to take work for every conditions.
The benefit sanction is always absolute, meaning 100%, and jeopardizes one's subsistence. It lasts for 4 weeks in the case of resignation, and 6 to 8 weeks in the case of refusal to accept an offer for work or measures taken by the employment agency. This also applies to the time between missing an appointment at the employment agency and notifying the employment agency.
The denial of unemployment payments is imposed by the employment agency based on mere suspicion before the sanctioned unemployed person being allowed to present his or her point of view at a hearing. The burden of proof is de facto inverted: The accused must prove his innocence.
The imposition of sanctions differs massively in amount and distribution, but also over time, not only between the individual states, but also between different offices of the employment agency in one state. The sanctions are therefore applied apparently arbitrarily.
The permanent threat of sanctions leads the unemployed to rarely claiming their rights: in 2012 alone, the employment agency imposed around 100,000 sanctions while only about 3,000 unemployed persons appealed. At first instance there is no procedural aid and thus no support from a lawyer. As a result, unemployed persons are at the mercy of the employment agency's arbitrariness. Only very few – actually around 80 – proceed to the Supreme Administrative Court. At this point there is procedural aid available, however whoever looses the appeal must pay the costs of the proceedings to the Republic of Austria. These costs were raised by the government in 2011 from 380 Euro to 680 Euro.
Those particularly threatened with sanctions since January 1st, 2013 are people who apply for invalidity pension. The advance payment on their pension which releases them from the duty to show themselves able to work and willing to work, is reduced to two months. If the assessment center has not yet completed their evaluation, or you make an appeal to court, you must act as if you are completely able to work, despite the uncertainty of your employability. For example you must take part in measures of the employment agency or take jobs which may endanger your health.
This regulation will be tightened as of January 1st, 2014. The limited invalidity pension for everyone under the age of 50 will be abolished. Then disabled persons will have to either complete a compulsory rehabilitation or a vocational retraining at the employment agency under penalty of benefit sanctions.
According to a survey conducted by the health project 'Dignity instead of Stress', approximately 30 percent of unemployed persons are afraid of their next appointment at the employment agency. The sanction alone is severely harmful to one's health and can lead to depression, sleep disorders, diarrhea and can even lead to post-traumatic stress disorder. I myself have experienced something like this. The denial of my unemployment payments was later reversed on grounds of unlawfulness. However, the damages to my health remain without any chance to get compensation.
The permanent psychological stress induced by the threat of sanctions is a form of structural violence. The right to health and the dignity of those affected is often violated as a result.
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