(Decision of Federal Labor Court, Dec 10, 2103, Case 9 AZR 51/13).
The use of temporary workers (temp workers) is heavily debated in Germany. Many companies have misused the model to undermine collectively applicable working conditions by using temp workers to do the work of their regular work force on a regular basis (dauerhaft) for "less money". In an attempt to put a stop to this misuse, the German legislator amended the relevant statute (the Temporary Employment Act (Arbeitnehmerüberlassungsgesetz)) in 2011 and made it clear that temporary employment is only permissible if the temp worker is employed actually only "on a temporary basis”, i.e. not on a long term basis/permanently.
It has to date not been clear at what point the use of a temp worker still satisfies this requirement and at what point it turns into a long-term assignment. The legal consequences of a violation of the law had previously not been made clear either. There have been different court rulings on this.
In its decision of 10 July 2013 (Case 7 ABR 91/11), the Federal Labor Court provided clarity only to a limited extent: it was ultimately made clear in the summer "only" that the works council of a client's establishment may object to the use of a temp worker on a no longer only temporary basis; it remained unclear, however, exactly at what point the use of a temporary worker is to be deemed only temporary and what the legal consequence of a violation of the law prohibiting the use of a temp worker on a long-term basis is.
The Federal Labor Court clarified at least one of the still unclear issues this week (decision of Dec 10, 2103, Case 9 AZR 51/13): it ruled, namely, that no regular employment relationship with the client is established when a temp worker's assignment is not only temporary; this reversed the judgment of the lower court in this respect. The Temporary Employment Act provides for such a fiction of an employment relationship with the client only if the agency does not have a license, Section 10 (1) Temporary Employment Act. According to the Court, this provision could not be applied mutatis mutandis to the long-term use of temp workers because the legislator intentionally refrained from including such a legal consequence in the Temporary Employment Act. Nor did European law prescribe such a result. No specific legal consequence was provided for under Directive 2008/104/EC on temporary agency work. It was the responsibility of the European Union member state, and not the labor courts, to specify the consequences.
This creates legal certainty for the temporary agency sector. The fiction of an employment relationship with the client does not come into consideration as a legal consequence of a violation of the statute prohibiting the use of temp workers on a not only temporary basis; they now know what to anticipate.
It is regrettable, however, that the Federal Labor Court did not clarify the concrete interpretation of the term "temporary". Bearing in mind the fact that it has been announced that a maximum legal duration of use of temporary workers is to be included in the coalition agreement (between the two parties that will most likely form the new government in Germany), this legal issue is likely to lose some of its relevance, at least for the future.