The legislative reform required under the European "Directive on transparent and predictable working conditions" (DTPWC) affects the Part-Time and Fixed-Term Employment Act (TzBfG) in addition to the Act on part-time work and fixed-term employment contracts (Gesetz über Teilzeitarbeit und befristete Arbeitsverträge, TzBfG). The new Section 15 (3) TzBfG, which will come into force on 1 August 2022, requires that the agreement of a probationary period for fixed-term employment relationships be proportionate to the duration and nature of the work. In drafting contracts, employers must therefore consider in future which probationary period is selected on the basis of the length of the fixed term on a case-by-case basis. A probationary period that is too long will result in the agreement on the probationary period being invalid. The law does not provide any guidance to employers. Employers should base their decision on the following criteria:
The probationary period must be in reasonable proportion to the length of the fixed-term employment. Neither the wording of the law nor the explanatory memorandum provides any indications as to how proportionality is to be determined. It is therefore worth taking a look at an amendment proposed by the European Parliament in the course of the legislative procedure leading to the adoption of the DTPWC. There, the proposal was made that, in the case of fixed-term contracts of less than 12 months, the probationary period shall not exceed 25% of the expected duration of the contract. For an employment contract limited to six months, the probationary period should then have a maximum length of one and a half months. However, the 25% benchmark cannot be regarded as a fixed standard but may serve as guidance for employers.
The length of the probationary period should also be in proportion to the nature of the work. Various indications can be used for this purpose. The length of the probationary period will depend on how long the familiarisation period is to be in the specific case. This, in turn, depends on the difficulty of the work and the relevant professional experience of the employee. If the employee has already been trained or is carrying out the work again, a long probationary period would be inappropriate. A classic example of this is seasonal work. In certain sectors of the economy, such as trade, tourism or catering, additional workers are increasingly needed during the season. They do not require a long training period (in case of repeated activity). In addition, the employee's position in the profession and area of responsibility may also be crucial in deciding the probationary period. If permanent employment is sought after the expiry of fixed term, this may also be an indication that a longer probationary period is appropriate.
It remains to be seen which standards courts will apply in future to determine the proportionality of the probationary period in fixed-term employment contracts. However, employers should critically examine the probationary period provisions on a case-by-case basis, as an excessively long probationary period will entail far-reaching consequences. In this case, the shortened notice period during the probationary period does not apply, but the statutory notice period or a longer contractually agreed notice period.
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Dr Anna Mayr
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