Temporary employment plays an important role especially as a design model in the context of trade tax in a dismantling. It is therefore important to know the legal framework for the admissibility of a temporary agency. These are centrally shaped by EU law. We explain when and under what conditions temporary employment is possible.

1. Concept of temporary employment

1.1. Definition

Temporary agency work is another term. According to the definition of temporary agency worker in Article 1 RL 2008/104/EC, both at the conclusion of the relevant contract of employment and at each of the actual assignments, the employer must have the intention of temporarily making the worker concerned available to a user undertaking.

2.2. Delineation from mere personnel design

The mere organisation of staff is to be distinguished from the temporary agency. The model of personnel design does not fall within the scope of the Employee Transition Act (AÜG). Personnel design allows the employer to permanently leave his employees to another company. This means that the personnel arrangements for temporary agency are different in that the temporary agency and the employee are not only temporary. In addition, employees are not only hired to leave them to other companies.

Especially in the public service, the model of personnel design is widespread. This occurs, for example, in the privatisation of certain areas of work by the public employer, if these do not necessarily have to be handled by the government. This category includes, inter alia, hospitals or administrative units.

For privatisation, the public body may transfer the entity to the company organised under private law. However, the problem is that employees regularly object to the transfer of business in order not to lose the advantages offered by the public service. As a result, the employment relationship with the public employer continues, but the employment opportunity is eliminated due to privatisation. In this case, the public employer may, in accordance with Section 4(3) of TVöD, require employees to perform their contractual work with the private company. Then he leaves the employees permanently to the other company. Since they were also recruited not only for the purpose of their temporary transfer, there is a pure personnel structure.

2nd Fundamentals for Employee Location

For companies, temporary agency is a way of flexibly using employees in various areas only temporarily and then relocating them to other locations. In addition, there may be trade tax advantages in the context of a disassembly.

However, temporary workers are particularly worthy of protection. Legislators have taken this need for protection into account. First of all, it prohibited the provision of a commercial worker without exception. However, the Federal Constitutional Court (BVerfG) gave the legislature the task not to prohibit the temporary employment, but to regulate it in a socially acceptable manner. This happened through an amendment to the Employee Temporary Provision Act (AÜG). This law is intended to prevent the exploitation of the workers concerned. For this purpose, the law contains in particular permit regulations in §§ 1 ff. AÜG, regulations on the inadmissibility of takeover bans (§ 9 no. 3 AÜG), the statutory fiction of an employment relationship with the user in the case of illegal temporary employment and the principle of equality (§ 8 AÜG). The requirements are supplemented by a number of criminal offences (§ 15a AÜG) and a catalogue of administrative offences (§ 16 AÜG).

The right of temporary agency work is fully determined by EU law by the European Directive 2008/104/EC on temporary agency work. These guidelines are increasingly modified and supplemented by the European Court of Justice (ECJ) and the Federal Labour Court (BAG).

3. Legal limits for temporary employment

3.2. Maximum duration of release

3.2.1. Maximum legal duration

§ 1 paragraph 1b sentence 1 AÜG provides for a maximum duration of 18 months. The border is designed as a double ban: The lender may not leave the temporary agency worker to the same user for more than 18 months (maximum duration) and the user may not let him work for more than 18 months (maximum duration). This is to prevent users from permanently replacing their permanent employees with temporary agency workers. However, the problem is that the deadline is employee-related. However, a job can be permanently filled by different temporary workers. As a result, this workplace is no longer available to the permanent workforce. The objective of maximum duration is therefore not fully achieved.

3.2.2 Derogation possible by collective agreement

§ 1 paragraph 1b sentence 3 AÜG contains the possibility to establish deviating agreements by collective agreement. In this way, the legislature wanted to strengthen the freedom of the parties to the collective bargaining agreement and provide an incentive for collective bargaining. In addition, the temporary agency model should continue to be able to be used flexibly and as needed. The law does not specify maximum periods. However, the parties to the collective bargaining agreement must ensure that the transfer is only temporary. In addition, deviations are only possible through a collective agreement of the application industry. In collective agreements in the transfer industry, however, no derogation can be made.

For companies subject to tariffs, there is another possibility to set the deviating maximum period. According to § 1 subsection 1b sentence 5 AÜG, a deviating maximum period of assignment can be set by an operating agreement or service agreement if the collective agreement contains an opening clause for this purpose.

In accordance with § 1 subsection 1b sentence 4 of the AÜG, non-tariff-bound users have a right of subscription by operating agreement or service agreement. The prerequisite is that the operation falls within the geographical, technical and temporal scope of a collective agreement, which regulates a different maximum duration according to § 1 subsection 1b sentence 3 AÜG.

3.2.3. Derogation for companies without a collective agreement

Non-tariff companies may deviate from the statutory maximum period in accordance with § 1 subsection 1b sentence 6 by operating agreement or service agreement. The period is limited to 24 months. With this limitation, the legislator wants to consciously build up pressure to join the association.

3.3 Principle of equality

§ 8 paragraph 1 AÜG regulates the principle of equality. According to this, the rental company is obliged to grant the temporary agency worker during the assignment the essential working conditions applicable in the company of the user company to a comparable permanent worker, including wages. However, according to § 8(2) to (4) of the AÜG, the principle may again be deviated from by collective agreement.

The ECJ has pointed out that the overall protection of temporary agency workers provided by the Directive does not require protection beyond the general level of protection. However, insofar as the collective agreement allows for unequal treatment in relation to essential working conditions to the detriment of temporary agency workers, the collective agreement must grant advantages to temporary agency workers. They must be able to compensate for their unequal treatment. However, the ECJ has not defined the nature of the advantages more precisely.

The FOPH has determined for the collective agreements of iGZ and ver.di that they meet the above-mentioned requirements of the Directive. It is true that temporary agency workers suffer economic disadvantages by receiving lower remuneration than permanent workers. However, the lower remuneration is compensated by the continued payment of the remuneration even in loan-free periods. Loan-free periods are possible, for example because the temporary agency worker is not exclusively recruited for a specific assignment or the user company contractually reserves a right of participation in the selection of temporary agency workers.

In addition, § 11 (4) second sentence of the AÜG for the area of temporary employment absolutely ensures that the rental company has to bear the economic risk and operational risk for rent-free periods without restriction. Furthermore, the legislature has ensured that the collective remuneration of temporary agency workers must not fall below the state-set wage lower limits and the statutory minimum wage. The derogation from the principle of equal pay is also limited in time to the first nine months of the temporary employment relationship according to § 8 (4) sentence 1 AÜG. The interplay of these rules respects the overall protection of temporary agency workers, even if the principle of equality is restricted.

4th Conclusion

For example, if you want to transfer employees to your subsidiary in order to save on business tax, you must ensure that the transfer of employees is permitted. In particular, you need to apply for a permit and observe the maximum duration applicable to your area as well as the principle of equality.