What happened?
The works council of a hospital filed a declaratory action (under § 54 para 1 ASGG) against the province as the employer of the hospital’s employees. The dispute concerned whether employees who fall ill before or during an agreed time compensation phase (e.g., for the reduction of overtime or night work hours) have the right to withdraw from the time compensation agreement. The works council argued that such a right of withdrawal should exist, particularly when the time compensation serves to balance a specific work-related strain (such as night shifts or hours worked beyond the regular weekly working time), thereby creating a particular need for recovery.
The employer opposed this, arguing that time compensation primarily involves a different distribution of working time and does not primarily serve recreational purposes. Therefore, illness during the time compensation period cannot be a valid reason for withdrawing from an already concluded agreement. Both the court of first instance and the appellate court agreed with the employer’s view and dismissed the claim.
The works council then filed an appeal with the Austrian Supreme Court (OGH).
How did the OGH rule?
The OGH dismissed the appeal filed by the works council and thereby upheld the decisions of the lower courts.
The Court held that employees do not have the right to withdraw from a previously concluded time compensation agreement due to illness — not even when the time compensation is intended to balance a particular work strain (e.g., night work or overtime).
In its reasoning, the OGH emphasized that the primary purpose of a time compensation agreement is to adjust the average working time to align with the standard working hours. Unlike vacation leave, time compensation serves only secondarily as a means of recovery. Therefore, an illness during a time compensation period does not justify the termination of such an agreement.
Furthermore, the OGH pointed out that treating the matter differently — i.e., disallowing an interruption of an ongoing time compensation period due to illness, while allowing a withdrawal before the period begins — would be inconsistent and therefore unacceptable. Consequently, it confirmed the dismissal of the claim and adhered to existing case law, which provides that even in the event of illness, no right of withdrawal from time compensation agreements exists.
(Austrian Supreme Court decision 9 ObA 17/25b of April 29, 2025)
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