Fundamental Rights Section
tasks include the treatment of requests, complaints or notices. They are, in particular, entitled to immediately and directly lodge disciplinary notices with the competent civil service
authority (Sect. 27 para. 4 of the Federal Act on Equal Treatment in the Public Service).
The Federal Equal Opportunities Commission of the Bundesministerium für Gesundheit und
Frauen (Federal Ministry of Health and Women) and the other institutions established pursuant to the Bundes-Gleichbehandlungsgesetz (Federal Act on Equal Treatment in the
Public Service) are responsible for protecting federal officials against discrimination. The
complainant is a staff member of the Österreichisches Postsparkassenamt which is supervised by the Federal Ministry of Finance. In its statement to the Ombudsman Board, the
competent department of the Bundesministerium für Gesundheit und Frauen (Federal Ministry of Health and Women) did not contest that Ms. N.N. had actually spoken to members
of the competent Federal Equal Treatment Commission, but also stressed that no action
had been taken, because no formal application had been filed. Furthermore, the following
information was given about the general approach in the case problems of jurisdiction. 'If a
problem of jurisdiction arises between the Equal Opportunities Commission for the Federal
Public Service and the private sector – e.g. in the case of hived-off undertakings with respect to the different personnel structures – the senate discusses and decides on the jurisdiction pursuant to the respective Outsourcing Act.' Unfortunately, the Outsourcing Act at
issue is silent about the applicability of the Bundes-Gleichbehandlungsgesetz (Federal Act
on Equal Treatment in the Public Service).
In the Ombudsman Board’s view, this explanation is far from satisfactory. The provision of
prompt advice and help must not fail because of questions of jurisdiction. In the present
case, the complainant is an official who was assigned for service to a hived-off undertaking.
She was employed under public law by the Austrian government also after the hiving-off of
Postsparkasse. As a result, the equal opportunities institutions would have had jurisdiction
over her case.
The Ombudsman Board stepped into the breach for the complainant, reviewed the case
and came to the conclusion that the approach of the Postsparkassenamt as her employer
had been illegal, because material procedural rules, which must be complied with in the
case of transfer, had been ignored:
In each case of transfer in the interests of the service, officials must be enabled to raise
objections within two weeks (Sect. 38 BDG - Beamtendienstgesetz - Civil Service Act).
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