Under the provisions of the MSchG (Maternity Protection Act), for expectant and nursing mothers sometimes a change in the job at their company is necessary. This is the case for night work or when the activity involves health risks, such as heavy or dangerous physical work.
If such a change in the job is necessary, pursuant to Section 14 para 1 MSchG, women are still entitled to the remuneration they received during the 13 weeks prior to the change. The guaranteed remuneration includes the usual salary, including all bonuses and extra payments. However, does the employer also have to continue paying the overtime allowance?
One argument in favor of not paying the overtime allowance could be that under Section 8 MSchG, expectant and nursing mothers are fundamentally prohibited from working overtime. On the other hand, this would put mothers in a worse position than employees who are prevented from working due to illness or an accident at work but who still receive their overtime allowance.
The Austrian Supreme Court clarified this issue and came to the conclusion that there is no entitlement to continued payment of the overtime allowance after a change in the job during pregnancy. Despite continued employment, expectant and nursing mothers should therefore in some cases be prepared for a loss of earnings.