Self-employed workers (Directive 2010/41/EU and some relevant provisions of the Recast Directive)

• Author: Thomasberger, Martina
• Pages: 44-46

44

8Self-employed workers (Directive 2010/41/EU and some relevant

provisions of the Recast Directive)

8.1General (legal) context

8.1.1Surveys and reports on the specific difficulties of self-employed workers

None available.

8.1.2Other issues

Currently, there are no issues concerning non-discrimination in self-employment.

8.1.3Overview of national Acts

Paragraph 1(3) of the Equal Treatment Act for the Private Sector states that ‘the formation,

establishment or extension of an enterprise as well as the beginning or extension of any

kind of self-employed occupation’ is part of the material scope of the implementing

legislation.117

8.1.4Political and societal debate and pending legislative proposals

Currently, there is no public debate concerning self-employment.

8.2Implementation of Directive 2010/41/EU

Paragraph 1(3) of the Equal Treatment Act for the Private Sector has been introduced as

a measure for implementing the Directive.

8.3Personal scope

8.3.1Scope

The personal scope of equal treatment legislation covers all persons who enter business

relations as defined in Paragraph 1(3) of the Equal Treatment Act for the Private Sector.

The nature of the business will then determine whether the occupation falls into the

material scope of one of the professional associations or if one of the several social security

statuses concerning self-employment is applicable.

8.3.2Definitions

There is no formal legal definition of self-employment in place. Self-employment is largely

defined by membership in one of the professional associations (Kammern) or by exercising

a self-employed occupation for which no professional association exists. Another way of

ascertaining if a person is self-employed is to assess their social security status. Persons

who are insured under the Trade and Commerce Social Security Act or under the Farmers’

Social Security Act (Bauern-Sozialversicherungsgesetz, BSVG) are legally considered to be

self-employed.

Legal doctrine and case law also recognise a form of quasi self-employment in the form of

‘free contractual workers’ (freie Dienstnehmer/innen). Persons working under these

contracts do not have the same contractual obligations as ‘real’employees, and do not fall

into the personal scope of labour legislation but are subject to organisational and economic

bonds to an employer. This makes their social status comparable to that of regular

employees and conveys eligibility for social benefits such as unemployment and sickness

117https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40151371/NOR40151371.pdf.