Unemployment protection for self-employed persons and platform workers in Austria

Abstract

The article describes the protection against unemployment for self-employed persons and platform workers under Austrian law. The aim is to provide an overview of the respective protection systems. Interpretation issues regarding individual provisions are not discussed in detail, as they are unlikely to yield insights for a comparative study. The article concludes with a brief summary of the current policy debate in Austria.

1. Introduction

This article describes the protection against unemployment for self-employed persons and platform workers under Austrian law. The aim is to provide an overview of the respective protection systems. Interpretation issues regarding individual provisions will not be discussed in detail, as they are unlikely to yield insights for a comparative study. The article concludes with a brief summary of the current policy debate in Austria.

1.1 Social security in Austria

Austria has a comprehensive system of social security and a well-developed welfare state. The largest and most important part of social security in Austria is the social insurance system. As the Austrian social insurance system was modelled on the German one, which was established around the same time and under similar circumstances, it can be classified as an example of the ‘Bismarck model’. It consists of four branches of insurance: health insurance, work-related accident insurance, pension (old-age) insurance and unemployment insurance.

The social insurance system is primarily mandatory, meaning that insurance coverage is provided regardless of the insured person's preference. Additionally, the Austrian social insurance system is linked to the presence of some kind of employment. This means that, in principle, all individuals who earn a certain income from employment are insured (see next paragraph). However, there are a number of exceptions to these two principles. In particular, individuals can get voluntary health insurance even if they are not employed (e.g. Section 16, 19a Allgemeines Sozialversicherungsgesetz (ASVG)). Furthermore, the state pays health insurance contributions for certain groups of people. As a result, around 99.9% of the Austrian population are covered by health insurance (Dachverband, 2023).

In line with its nature as an insurance scheme, Austrian social insurance is (mostly) financed through contributions. Not all income is subject to contributions. Firstly, there is a minimum income threshold, which is €500.91 per month for employees and €6,010.92 per year for self-employed persons (as of 2023). Employees whose income is below this threshold are only insured for work-related accidents, but they can voluntarily join the health and pension (old-age) insurance scheme. It is worth noting that employees with more than one job, whose total income is above the minimum threshold, but below it from each individual employment relationship, are subject to mandatory health and pension (old-age) insurance but they are not protected against unemployment. However, the relevant provision in the Unemployment Insurance Act (Arbeitslosenversicherungsgesetz (AlVG)) has recently been ruled as unconstitutional. ¹ Therefore, the relevant provision will be repealed with effect from 1 April 2024. From that day on (or sooner if the legislator steps in), employees whose income from different jobs is above the minimum threshold will also be subject to mandatory unemployment insurance.

In this context, the question arises as to whether there is protection against unemployment when a person has both a low income from dependent employment and a low income from self-employment. Under the current legal framework, such individuals are not covered by unemployment insurance, as there is no aggregation of income from different forms of employment. It remains to be seen whether this will change as a result of the aforementioned ruling by the Constitutional Court. If the federal legislator does not pass comprehensive new regulations and the relevant provision is merely repealed by the Constitutional Court, there will still be no insurance coverage in the future for individuals combining two low incomes from self-employment and dependent employment.

Self-employed persons whose income is below the relevant threshold are still insured if they hold a business licence and are therefore members of the Chamber of Commerce. In this case, the contributions are calculated on the basis of the minimum income threshold (with reductions for certain cases). If they do not hold a business licence and their income is the relevant minimum level, they are not covered by mandatory insurance (not even for work-related accidents). However, they can voluntarily get health, accident, and pension insurance. It is worth noting that there is no voluntary unemployment insurance for persons on a low income.

In addition to the minimum threshold, there is also a maximum threshold for the income subject to contributions (maximum contribution base). Those on a higher income are not excluded from insurance, but they are not required to pay contributions for the surplus that exceeds the maximum contribution base. The maximum contribution base is €6,825 per month (€81,900 per year) as of 2023.

In the present context, the possibility of voluntary unemployment insurance for self-employed persons is particularly relevant and will be described in more detail below. In addition to the social insurance system, there is a subsidiary system of social assistance that provides a minimum income to individuals who cannot support themselves financially. It is also possible to receive both unemployment benefits and social assistance at the same time. If unemployment benefits do not reach the level of social assistance, the difference is provided in the form of social assistance. Other social benefits, such as family and long-term care benefits, will not be discussed further in this text.

There are no specific regulations for platform workers under Austrian labour or social security law. Depending on their employment status, they are either insured as employees, employee-like persons or as self-employed persons as long as they meet the relevant income threshold. The greatest difference between dependent employment and self-employment with regard to social security – apart from administrative issues – lies in the area of unemployment insurance.

1.2 Unemployment protection

Unemployment insurance provides protection against the risk of losing insured employment (i.e. compensation for loss of work). There are two kinds of unemployment benefits: unemployment benefit (Arbeitslosengeld) and emergency assistance (Notstandshilfe). Unemployment benefit is a short-term or medium-term benefit. The maximum duration is between 20 and (in exceptional cases) 239 weeks, depending on the age of the recipient, the length of time he/she has been insured and other factors. Unemployment benefit basically amounts to 55% of previous net income with some (minor) supplements, especially for child support.

Emergency assistance is necessarily bound to a previous entitlement to unemployment benefit. Emergency assistance is paid if the recipient is still unemployed and cannot support himself/herself financially. Thus, it is a means-tested benefit. In principle, emergency assistance can be claimed indefinitely, but has to be applied for every year. This kind of insurance benefit without temporal limitation is rather unusual in international comparison and is often at the centre of policy debates about unemployment insurance in Austria. Emergency assistance amounts to 92% or 95% of the previous level of unemployment benefit but is subject to an upper limit after six months (€1,110.26 or €1,295.30 as of 2023).

The Austrian system of unemployment insurance also provides what are referred to as occupational protection (Berufsschutz) and income protection (Entgeltschutz). According to the first sentence of Section 9(3) AlVG, during the first 100 days of receiving unemployment benefit due to a newly acquired entitlement, the recipient does not have to accept a job if it significantly limits the possibility of them gaining future employment in their previous occupation (cf 3.1.1.1.). The regulation on occupational protection serves both public and individual interests. From an economic perspective, it aims to prevent a devaluation of ‘human capital’, as the loss or at least the underutilisation of qualifications (knowledge and skills) is avoided.

Section 9(3) AlVG further states that during the first 120 days of receiving unemployment benefit due to a newly acquired entitlement, a job in a different occupation or part-time work is only acceptable if the income is at least 80% of the previous earnings that correspond to the last calculation basis for unemployment benefit. For the remaining period of receiving unemployment benefit, a job in a different occupation or part-time work is only acceptable if the income is at least 75% of the previous earnings that correspond to the last calculation basis for unemployment benefit. Recipients of emergency assistance are not covered by income protection or occupational protection.

Unemployment insurance is mandatory for employees and employee-like individuals. Furthermore, since 1 January 2009, the majority of self-employed individuals have the option of voluntarily joining the unemployment insurance (not available for farmers, notaries, board members of public limited companies and, in general, persons above 63 years of age).

The provisions regulating contributions are also substantially different. As mentioned above, unemployment insurance is mostly financed by contributions. In 2021 only 4.15% of its funding came from the federal budget (Federal Ministry of Labour and Economy, 2022). The contributions generally amount to 6% of the insured income, with discounts for low-income individuals (3% for income up to €1,885; 4% up to €2,056; 5% up to €2,228 as of 2023). For self-employed persons, however, the calculation basis for contributions is not their actual income. Instead, they can choose from three different lump sum amounts (€1,706.25, €3,412.50, or €5,118.75 as of 2023). Accordingly, their monthly contributions amount to €51.19 (the aforementioned discount also applies here; in the lowest tier the contribution rate is therefore only 3% and not 6%), € 204.75, or € 307.13, respectively. It is not surprising that approximately 75% of voluntarily insured individuals have chosen the lowest tier. ² Before the introduction of the discount regulation (2018), that percentage was around 55%. ³ Despite these fundamental differences in the establishment of insurance and contributions, benefits for all insured individuals are financed from the same pool of contributions, resulting in problems regarding the constitutional principle of equal treatment (Pfalz, 2018: 71; Pfeil, 2020: 6).

To receive unemployment benefits, one must fulfil the entitlement conditions set out in Section 14 AlVG. When a person applies for benefits for the first time, he/she must have been insured against unemployment for at least 52 weeks in the 24 months prior to the date of the application. If the person is under 25 years of age, the requirement is met if he/she has been insured for at least 26 weeks in the 12 months prior to the date of the application. For each subsequent application, it is required that the person has been insured for at least 28 weeks in the 12 months prior to the application, or for at least 52 weeks in the 24 months prior to the application. This requirement is the same for employees, employee-like persons, and self-employed persons (Section 14(4) and (8) AlVG).

2. Personal scope of unemployment protection

2.1 Self-employed persons

Two groups of self-employed persons are protected against unemployment under Austrian law: individuals who have opted into the voluntary unemployment protection scheme according to Section 3 AlVG (chapter 3.1.1), and individuals who acquired entitlements to unemployment benefits as employees and may claim these benefits at the end of their self-employed activity according to Section 15, 80 and 81 AlVG (chapter 3.1.2).

Voluntary unemployment insurance pursuant to Section 3 AlVG is available to individuals who are subject to mandatory pension (old-age) insurance under the Social Insurance for Self-employed Persons Act (Gewerbliches Sozialversicherungsgesetz (GSVG)) or who are exempt from it pursuant to Section 5 GSVG (this exemption applies to individuals who are affiliated with a statutory organisation, such as the Austrian Medical Chamber or the Austrian Bar Association, if their organisation provides its own pension scheme). Therefore, the following groups of people are eligible: self-employed persons with a business licence; partners in commercial partnerships and certain directors of limited liability companies (if the partnership or company holds a business licence); self-employed pharmacists; physicians; patent attorneys; dentists; attorneys at law; authorised architects and certain authorised engineers; as well as anybody not covered by any specific exemption with taxable income from independent work that is above the aforementioned threshold. Voluntary unemployment protection is not available to civil servants, farmers, notaries and notarial candidates, board members of public companies, individuals entitled to an old-age pension or early retirement benefits, and individuals who have reached the age of 63 (Pfalz, 2021: 163).

Since individuals insured against unemployment as employees or employee-like persons may be able to retain the claims acquired and assert them at a later point in time, the definition of these groups is also relevant. Protection for employees mainly covers individuals with an employment contract, which under Austrian law means a contract under which one person is obliged to provide services to another person on their instruction for remuneration (Section 4(2) General Social Security Act (Allgemeines Sozialversicherungsgesetz (ASVG)). The status of an employee under Austrian social law essentially corresponds to the definition of an employee according to the Lawrie-Blum formula developed by the ECJ ⁴ (Dullinger, 2018: 4). Employee-like persons are defined in Section 4(4) ASVG as persons who are legally independent and working in a certain kind of (continuous) service contract and who essentially perform the services themselves and do not have their own entrepreneurial structure.

2.2 Platform workers

As there are no special rules for platform workers under Austrian law, their status under social law (and labour law) must be determined on a case-by-case basis according to general principles. Unlike in many European countries, there is currently no relevant case law either (cf Prassl et al., 2022; Hießl, 2022). When compared internationally, even the discussion in legal literature seems a bit less widespread (Warter, 2016: 87; Risak, 2017: 44; Pfalz, 2019: 426). It can be argued, cautiously, that platform workers who provide location-based services, such as courier services (food delivery, taxi rides), and are integrated into the company's organisational processes, can be considered employees (Griesser et al., 2023: 4). However, platform workers who provide digital services online are generally not considered employees under Austrian law - at least if one assumes the currently prevailing (‘traditional’) understanding (Gruber-Risak, 2021: 208; Pfalz, 2019: 436). Nevertheless, because they mostly provide their services themselves and have no entrepreneurial organisation, they may be insured as employee-like persons. In this case, assuming they meet the relevant income threshold, they would be subject to mandatory insurance (also against unemployment), and the contracting partner (usually the platform) would be responsible for the administrative duties related to registration with the social insurance and payment of contributions.

If platform workers have their own business licence (e.g. for passenger transport), they are insured as self-employed members of the Chamber of Commerce (Section 2(1) and (1–3) GSVG). Platform workers who do not hold a business licence and cannot be classified as employees or employee-like individuals are insured as self-employed under Section 2(1) and (4) GSVG if their income is high enough. In both cases, they are only protected against unemployment if they either voluntarily join the unemployment insurance or can still claim unemployment benefits from a previous dependent employment (see above).

3. Unemployment protection schemes for self-employed and platform workers

3.1 Self-employed

3.1.1. Voluntary unemployment protection

With effect from 1 January 2009, the Austrian federal legislator has enabled self-employed individuals to secure protection against unemployment by paying contributions. Notably, the decision on whether such an insurance relationship is established rests with the self-employed person (opting-in model). They can also determine the level of financial security by selecting the contribution basis, another first in Austrian social security law.

The SVS must notify all persons who may consider voluntary unemployment insurance about the relevant circumstances (Section 3(2) AlVG). The deadline for opting in is six months from the receipt of notification. An online form is available on the SVS website.

After joining, the insured person is bound for eight years (Section 3(5) and (6) AlVG). If one does not terminate the insurance agreement after eight, 16, 24 years etc., he/she remains insured for another eight years. The eight-year commitment period was included to avoid speculation by the insured person regarding the necessity of unemployment protection. Termination is only effective if declared within six months of the end of the (previous) eight-year period. The chosen contribution basis cannot be changed while the insurance is valid (Section 3(4) AlVG). When re-joining the insurance scheme after an exit, the contribution basis can be chosen again. For the level of contributions, see above (1.2.).

To include self-employed persons in unemployment insurance, an adjustment of the insured risk as defined in AlVG was necessary. According to Section 12(1) AlVG, unemployment is now defined by three cumulative criteria: termination of (self-employed or dependent) employment; lack of mandatory pension (old-age) insurance (with certain narrowly defined exceptions); and lack of new or additional (self-employed or dependent) employment above a minimum income level.

The negative requirement around mandatory pension (old-age) insurance was introduced as part of the same reform as the opting-in model for self-employed persons and aims to prevent - or at least reduce - uncertainty around the question of whether self-employment has actually been terminated. Therefore, only such termination of employment that also leads to the termination of mandatory pension (old-age) insurance results in unemployment (e.g. waiving or suspension of business licence or leasing the business to someone else). ⁵ However, it is worth noting that self-employment can also be terminated without such a formal act, if the respective activity does not require a business licence and there is sufficient objectifiable proof that the activity has indeed been fully stopped (Pfeil, 2017: 23). ⁶ Additionally, the negative requirement around pension (old-age) insurance prevents there being any gap in time between the end of mandatory insurance and the start of unemployment (Pfeil, 2017: 19).

The fact of the existence of an employment that provides an income below the minimum threshold does not exclude individuals from receiving unemployment benefits. This means that a person can still be qualified as unemployed if he/she earns less than the relevant minimum. However, it should be noted that the employment that resulted in inclusion in the unemployment insurance scheme must be completely terminated, and not just reduced to an extent below the relevant threshold, to enable the claimant to receive unemployment benefits (Section 12(6) lit c AlVG). There are specific rules for calculating the relevant income in the case of self-employment (Section 12, 36a, 36b AlVG). Basically, neither the net income nor 11.1% of the total earnings must exceed the relevant threshold of €500.91 per month (as of 2023).

3.1.1.1. Legal issues regarding the voluntary unemployment scheme for self-employed persons

At the centre of legal considerations regarding the inclusion of self-employed workers in unemployment insurance lies the fact that coverage is provided in a single risk pool along with mandatorily insured employees. Therefore, contributions paid by employees to unemployment insurance are also used for benefits for voluntarily insured self-employed persons and vice versa.

This raises a number of fundamental constitutional questions. The distribution of legislative authority between the federal and state levels and the principle of equality are the most relevant benchmarks. The key issue is whether self-employed and dependently employed individuals are exposed to the same risk in terms of losing their employment, as only similar risks may be pooled together in social insurance. On closer inspection, the question of similar risk exposure can be answered affirmatively since risk occurrence is triggered by the same (groups of) events for self-employed and dependently employed individuals (Pfalz, 2018: 100).

By pooling self-employed and dependently employed individuals together, the law initially treats them as equals. However, in some vital aspects, self-employed individuals are subject to their own rules, so there is a single but not unified system. The voluntary character of insurance and the possibility of choosing the contribution basis for self-employed individuals, along with mandatory insurance and income-dependent contributions for employees, are essential in this regard. Whether and the extent to which these differentiations are permissible or place one group at an unreasonable disadvantage is ultimately a matter of weighing up the interests involved that cannot be assessed definitively (cf Pfalz, 2018: 80). Clarification by case law is currently unlikely, as the practical significance of voluntary insurance under Section 3 AlVG is limited (see below).

Apart from these fundamental questions, it is sometimes unclear whether and how the legal provisions, which are still tailored to employees, apply to self-employed individuals. This includes provisions on the assessment of (physical) ability to work, the rules on willingness to work (i.e. what kind of jobs recipients of unemployment benefits have to accept), and the calculation of unemployment benefits.

Thus, the question arises as to whether (formerly) self-employed individuals can be required to take up self-employment again. If so, in the event of a lack of willingness to take up such employment, entitlement to benefits would be denied due to a lack of willingness to work. The relevant provisions are Section 7 and Section 9 AlVG. This question has repeatedly been discussed in legal literature even before the opting-in model was implemented (Pfalz, 2018: 159; Schrammel, 1981: 25; Rebhahn, 1998: 643). Ultimately, the wording of Section 9(1) AlVG is clear. Accordingly, willing to work means being willing to accept a reasonable employment offered by the labour market authority in an employment relationship ‘as an employee within the meaning of Section 4(2) ASVG.’ The explicit restriction to dependent employment relationships was implemented as part of the same reform that introduced the notion of employee-like persons and the opting-in model for self-employed persons. Thus, even if a person was formerly self-employed, labour market authorities cannot demand they take up self-employment again.

With regard to willingness to work, it is further necessary to clarify whether the occupational protection under Section 9(3) AlVG extends to (previously) self-employed persons. The wording of the provision covers self-employed persons, and its purpose speaks to its applicability. Valuable qualifications can also be lost among self-employed persons, and the individual effects associated with a decline in professional training are equally important for self-employed persons as for employees. Therefore, self-employed persons are also protected under the first sentence of Section 9(3) AlVG (cf Pfalz, 2018: 161).

Since the benefits for voluntarily insured persons do not depend on their actual income but on the chosen contribution basis, self-employed individuals – contrary to the view of the competent federal ministry – do not enjoy income protection under Section 9(3) AlVG (Pfalz, 2018: 163).

With regard to the calculation of benefits, one might think that there are no issues for self-employed individuals. After all, the contributions and, accordingly, the benefits for this group of persons are standardised at three possible levels that the person can choose from. However, upon closer examination, it becomes clear that the law is unnecessarily complicated (Section 21 AlVG).

For mandatorily insured employees, the timing of the application is decisive for the calculation for unemployment benefits. Individual income, based on data stored in a central database, serves as the basis for calculation if the (12-month) correction period provided for under Section 34(4) ASVG has already expired.

If no such data is available, income from more recent periods is also used to calculate benefits (Section 21(2) AlVG). This subsidiary method of calculation essentially corresponds to the previous legal situation. The priority calculation method based on the central database dates back to 1996 and was introduced to make administration more efficient. For self-employed persons, the method described is to be used ‘accordingly’.

In this context, it could be asked why the legislator does not regulate the calculation of benefits for self-employed individuals differently from employees. In the case of self-employed persons, according to Section 3 AlVG the unemployment benefit can always be based on the current contribution basis without any problems. The administrative simplification has already been anticipated for this group through the standardisation of contributions; further simplification is not necessary and not even possible. Instead, the rules for employees are to be applied to self-employed individuals as well. This can lead to unjust outcomes, as can be seen, for example, in a ruling by the Supreme Administrative Court ⁷ (cf. Pfalz, 2018: 166).

3.1.1.2. Practical relevance and structural effects on risk-pooling

The voluntary unemployment scheme is only of little practical relevance. In July 2022, 1,874 individuals were voluntarily insured under Section 3 AlVG, compared to 1,271 in July 2020 and 914 in July 2015. ⁸ While a continuous increase in the number of insured persons can be observed, the absolute numbers are still very low. In comparison, in 2022 approximately 434,000 persons were self-employed in Austria (not including farmers who cannot opt into unemployment insurance (Chamber of Commerce, 2023)). As a result, only 0.43% of self-employed persons have joined the voluntary unemployment scheme.

The voluntary nature of the insurance means that predominantly ‘bad risks’ (in the technical sense) opt for unemployment protection. About 80% of insured self-employed persons have already received benefits (Pfalz, 2018: 82). This results in financial redistribution from the group of mandatorily insured employees to the group of voluntarily insured self-employed persons.

3.1.2. Preservation of previously acquired entitlements for former employees

The reason for the limited practical relevance of voluntary insurance under Section 3 AlVG lies in Sections 15(5), 80(10) and 81(10) AlVG, which have been referred to as the ‘hidden inclusion’ provisions use to include self-employed individuals in the system of unemployment insurance (Pfeil, 2005: 158). It is considered a necessary aspect of the principle of reciprocity in unemployment insurance that insured individuals do not immediately have a claim to benefits but must acquire their entitlement. That is, they must have been employed for a certain minimum period of time and have paid contributions accordingly (Rebhahn and Pfalz, 2017: 429). This requirement must be fulfilled within a period of time that is calculated backwards from the day of the application for benefits. This period is referred to as the ‘framework period’ and usually amounts to 24 or 12 months (Section 14 AlVG). However, the law allows for an extension of the framework period under certain circumstances.

According to Section 15(5) AlVG, the framework period is extended without limitation by periods of self-employment, if the insured person has been covered by mandatory unemployment insurance for at least five years before starting this activity (unlimited extension of the framework period). For example, if someone worked as an employee (with relevant income) for five years and was subsequently self-employed for ten years, they can claim the unemployment benefits that they acquired as an employee at the end of their self-employment. During their self-employment they profit from the valorisation of their entitlements pursuant to Section 21(1) AlVG. If the period of mandatorily insured employment preceeding the period of self-employment is less than five years, the extension of the framework period is limited to five years at a maximum. For example, if someone worked as an employee for three years and was subsequently self-employed for ten years, they cannot claim any previously acquired benefits because the framework period expired at the end of the fifth year of their self-employment.

The current version of Section 15(5) AlVG came into effect on January 1 2009. Before this amendment, the provision already included a clause on the extension of the framework period for periods of self-employment. The previous version of Section 15(5) did not require a minimum duration of dependent employment with regard to the unlimited extension of the framework period. In this respect, the old regulation was more favourable to self-employed persons, since the unlimited extension of the framework period now requires a minimum of five years of dependent employment.

According to the travaux préparatoires, the Section 15 AlVG amendment should be implemented while preserving acquired rights. ⁹ That is why the previous legal situation regarding the extension of the framework period was perpetuated for individuals who had already benefited from it. Therefore, according to Section 81(10) AlVG, the framework period is extended indefinitely for individuals who have been self-employed and were previously covered by mandatory unemployment insurance before January 1 2009. It is somewhat symptomatic of the quality of Austrian social law legislation that Section 80(10) AlVG – which was introduced during the same reform – is completely identical in legal effect and thus entirely redundant.

The aforementioned provisions ensure that self-employed individuals who have previously worked as employees or (to a limited extent) as employee-like persons – employee-like persons have only been included in unemployment insurance since 2008 – remain insured against the risk of unemployment without paying ongoing contributions for insurance coverage. If they began their self-employment before January 1 2009, they remain insured without any temporal limitation, provided they fulfilled benefit requirements in the past. Self-employed individuals who started their activity later also remain protected without limitation if they were previously employed for at least five years. Otherwise, they remain protected for a maximum of five years, which is sufficient in most cases, since the majority of self-employed individuals terminate their activity within three years (Pfalz, 2018: 89).

It is questionable whether these provisions comply with the constitutional principle of equal treatment, as they lead to a significant advantage for self-employed individuals compared to employees. The latter (with exceptions for specific circumstances) must continuously pay contributions to maintain their benefit entitlements, whereas for self-employed individuals it is sufficient to have met the entitlement criteria once in the past, possibly many years ago.

The question of adequate justification for this imbalance can only be assessed approximately. In legal literature, the provisions are classified as problematic from an equality perspective, or at least inconsistent within the system of unemployment insurance (Pfalz, 2018: 80; Pfeil, 2005: 158).

The advantage for self-employed individuals is most apparent in Sections 81(10) and 80(10) AlVG: the entitlement to unemployment benefits, including the valorisation under Section 21(1) AlVG, which was fulfilled in the past, can be maintained indefinitely. In contrast, mandatorily insured employees are required to make ongoing contributions. According to Pfeil, this distinction is not justified and is therefore unconstitutional under Article 7 of the Federal Constitutional Act (Pfeil, 2017: 65). This assessment is convincing. There is no reason why self-employed individuals are more deserving of protection than employees, especially since they are given an opportunity to take out insurance coverage under Section 3 AlVG.

The current version of Section 15(5) AlVG still results in an imbalance between self-employed persons and employees that requires justification. However, the advantage for the self-employed is not as big, since five years of contributions prior to taking up self-employment are required for the unlimited extension of the framework period. The regulation of the limited extension is also problematic. It must be considered that the provision of five years of contribution-free insurance coverage still equates to a significant advantage for self-employed workers compared to employees. The assessment of this regulation primarily depends on whether it is justified for those in employment to support and secure those who venture into self-employment. If (presumably rightly so) support for entrepreneurial activity is seen as being in the public interest, it would further have to be questioned whether this public interest should be pursued with general tax revenues rather than the insurance contributions of employees.

With regard to the number of insured persons, it is evident that the practically relevant unemployment protection of self-employed individuals is not the voluntary scheme under Section 3 AlVG, but the insurance coverage under Sections 15(5), 80(10) and 81(10) AlVG. It is worth noting that this protection is contribution-free, at least with regard to ongoing coverage. The success of the voluntary insurance model is therefore significantly impaired.

3.2 Platform workers

As mentioned earlier, there are no specific regulations for platform workers in Austrian labour and social law (Felten et al., 2018: 5). With regard to their status in unemployment insurance, it depends on whether platform workers can be classified as employees, employee-like persons, or self-employed (Ziegler, 2021: 40; Bruckner and Krammer, 2017: 255). If they are employees or employee-like persons, they are subject to mandatory insurance against unemployment, with the employer taking care of the administrative issues regarding registration with the social insurance authorities and payment of contributions. Even if they are self-employed, they are still protected against unemployment if they have previously worked as an employee or employee-like person and have acquired entitlements. If this is not the case, they can still voluntarily join unemployment insurance if they have a trade licence or if their annual income exceeds the threshold of € 6010.92 (as of 2023).

The main regulatory problem regarding unemployment insurance for platform workers is that there is no insurance coverage in cases where individuals have low income from dependent employment and from self-employment as platform workers (see above 1.1.). The practical problems under current law primarily involve the difficulties faced by labour market authorities in reliably and objectively determining the termination of platform work. Additionally, platform workers often lack awareness of the Opting-In model. Generally, there is a gap in protection, especially with location-based platform work, as workers in this sector are frequently treated as (bogus) self-employed (Griesser et al., 2023). However, this is not a specific problem related to unemployment insurance.

4. Policy debate

A policy debate on the social protection of self-employed persons and platform workers is only taking place to a rather limited extent. This is mainly due to the fact that the Austrian social security system already covers all economically active persons who earn more than the relevant minimum income ( Felten et al., 2018 : 4).

With regard to the protection of self-employed individuals against unemployment, legal literature criticizes the impracticality and lack of homogeneity of the current system that pools self-employed persons and employees together (Pfeil, 2017: 65, 2018: 80, 2020: 6). However, this has not triggered a comprehensive policy debate among economic and political stakeholders. Another aspect that has been criticized is the eight-year commitment period, with demands for the period to be shortened (Trostet al., 2017: 122)

The economic wing of the Green Party, which is currently represented in the federal government coalition, has called for a reform of the unemployment schemes for self-employed persons (Grüne Wirtschaft, 2020). Specifically, they demanded an in-depth reform of the voluntary insurance that does not force self-employed individuals to cease their activities. They also called for the possibility to keep acquired entitlements during the time of self-employment to be unlimited again (i.e. without the five-year limit). It is worth noting that this would increase problems of inequality between employees and self-employed persons, especially if the benefits are still to be paid from the combined contributions of both groups. Some preliminary work was done for this purpose, but such a reform is not included in the coalition agreement of the current federal government. The only goal stated in the coalition agreement is to better inform self-employed individuals about the possibilities of voluntary insurance. In any case, no reforms are to be expected in the current legislative period, as the federal government could not agree on any specific reform even for those unemployment insurance projects that it explicitly included in its program.

Regarding platform workers, employee representatives mainly call for improving or at least clarifying the employment status of platform workers and enabling collective bargaining, but usually refer to the draft directive of the European Commission (Gruber-Risak et al., 2020: 26; Müllensiefen and Obrecht, 2022: 100). No specific material changes are demanded in the area of unemployment insurance. Representatives of employers emphasize that there is no need for legislative action, as the current law already provides sufficient solutions for platform workers. It is argued that this applies in particular to the area of social security, which already offers comprehensive protection (Gleißner, 2022: 185).