Temporary Employment: Can the maximum period of temporary work exceed 18 months in the same workplace with an employer?
by Atty. Dr. Christian Zeller
The Cologne Regional Labour Court has affirmed about employee leasing in a recently published decision on September 6th, 2019. The decision is not yet legally binding.
On September 6th, 2019, the Regional Labour Court ruled that there is no violation of the maximum transfer period pursuant to § 1 of the German Temporary Employment Act (AÜG) in the context of employee leasing if the employer uses several temporary workers successively in the same workplace. According to the court, the 18-month maximum transfer period does not apply in this case.
What was the decision of the Regional Labour Court about?
An employer consulted its works council on the planned employment of a temporary worker and asked for its consent. The works council refused to give its consent to the planned recruitment, arguing that temporary workers had already been employed in this area for a longer period of time (more than 18 months). Therefore, the establishment of a regular workplace was urgently necessary and preferable to the temporary leasing of workers. In its petition received by the competent labour court, the employer sought the replacement of the works council's consent to the hiring of the temporary worker and a declaration that the temporary hiring was urgently necessary for factual reasons. In support of its application, the employer argued that it was not sufficiently clear from the works council's communication why it had refused to consent to the hiring of the temporary worker. The employer did not violate § 1 of the AÜG because the maximum permissible temporary employment period of 18 months was not exceeded.
What is the maximum work period for temporary employment?
The Temporary Employment Act (Arbeitnehmerüberlassungsgesetz), which was amended on April 1st, 2017, introduced an upper limit for the duration of temporary work. In principle, the individual temporary worker may work for a maximum of 18 months in the same job with a hirer (§ 1(1b) Sentence 1 AÜG).
However, according to § 1(1b) Sentence 1 AÜG in the version applicable since April 1st, 2017, the maximum duration of temporary employment is employee-related, as the Regional Labour Court has now confirmed. It is merely an individual assignment limit. The new regulation is intended to protect temporary workers by only allowing them to be dispatched for a clearly limited period of time. According to the Regional Labour Court, the time limit of 18 months, which deviates from § 14(2), is the result of a compromise between the CDU/CSU and the SPD.
What does the maximum transfer period ultimately mean in the decision?
This limit is designed as a twofold prohibition: the lender may not assign the temporary worker to the same hirer for longer than 18 months (the maximum transfer period) , and the hirer may not allow the temporary worker to work for longer than 18 months (the maximum period of employment). The point of reference for a time limit on the deployment of temporary agency workers is not the employment need of the hirer, but solely the person of the temporary agency worker concerned. The permanent occupation of a job at the hirer and the associated restriction of the permanent workforce is therefore permissible according to the conception of the law, according to the Regional Labour Court.
Furthermore, the Regional Labour Court justifies its decision with the following supplemental briefs:
- According to Art. 2 of the Temporary Agency Work Directive 2008/104/EC of November 19th, 2008, the primary aim of the Directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work. However, it does not aim to secure permanent jobs in the user enterprise. Accordingly, the Directive consistently takes an employee-related view. This primary objective of improving the protection of temporary agency workers is achieved irrespective of whether the activities in the user undertaking are of a permanent nature or not.
- Article 3 of the Directive also does not define According to its wording, the provision also covers employee-related employment with the hirer. A comparison of § 1 (1b) AÜG with the law on fixed-term contracts also does not reveal any contradictions. Covering a permanent need for personnel by means of successive fixed-term employment relationships is fundamentally different from the temporary deployment of a temporary worker employed by his employer for an indefinite period, provided that the temporary worker is adequately protected in his relationship with his contractual employer, as is the intention of the Temporary Agency Work Directive.
- 1 (1b) AÜG and the filling of permanent jobs with temporary workers based on it ultimately withstand an abuse test. The abuse test required by Art. 5 of the Directive basically only covers the number of contracts concluded with the same person, but not the contracts concluded for the performance of the same work.
In summary, it can be stated that this decision of the Cologne Regional Labour Court, should it become res judicata, has clearly traced the limits of the applicability of the requirement of the maximum assignment period in temporary agency work. This decision thus creates more legal certainty for hirers of temporary workers who want to deploy several temporary workers consecutively in the same workplace.
At ZELLER & SEYFERT, German Attorney at Law Dr. Christian Zeller is in charge of the Employment & Labour Law department. He is focussed on German Employment Litigation and will handle your dispute with tenacity and full commitment. Attorney Dr. Zeller will provide you and your business courtroom representation before all German Employment Courts, Higher Labour Courts, and the Federal Labour Court. Dr Zeller is an expert on employment law in Germany and has contested and won many cases in this area. He would welcome the chance to fight your corner.
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