In practice, retroactive collective bargaining agreements regularly lead to challenges - especially when former employees whose employment relationship ended before the collective bargaining agreement was concluded are affected. In addition to increased administrative effort and legal uncertainty, the main question is: Are employees who have left the company also entitled to retroactive salary increases or bonuses?
Previous practice: No entitlement without a valid employment relationship
For a long time, the view was widespread in labour law practice that retroactive regulations from collective agreements were only applicable to those employees who were still in an active employment relationship at the time the collective agreement was concluded. This view was based on the concept of employee within the meaning of Section 2 para. 2 no. 2 ArbVG, which seemed to presuppose a current employment relationship.
Supreme Court contradicts the previous view
With its recent decision of 13 February 2025 (9 ObA 75/24f), the Austrian Supreme Court (OGH) has now brought about a fundamental change: According to the court, the parties to the collective agreement are free to determine retroactive regulations - such as actual salary increases or special payments - even for employees whose employment relationship existed at the time of retroactivity but had already ended at the time the collective agreement was concluded.
Reason
The Supreme Court bases its reasoning in particular on Section 11 (2) ArbVG, according to which collective agreements may also create retroactive regulations for existing employment relationships - regardless of whether these employment relationships are still valid at the time of the agreement.
Furthermore, the Supreme Court refers to the constitutional principle of equality: an objectively justifiable differentiation between active and retired employees is not recognisable - at least with regard to retroactive salary increases.
In practice
This decision by the Supreme Court has considerable practical relevance. In future, employers should not only review current employment relationships, but also terminated employment relationships with retroactive effect when concluding retrospective collective labour agreements.
In payroll accounting and HR management in particular, it must be ensured that any back payments are taken into account correctly - even if the employees concerned have already left the company.
Status: 03/06/2025
Source: Kraft & Kronberger specialised publications
Photo: Marc Mueller
