BAG rules on exceeding the maximum assignment duration for temporary agency workers
Temporary agency workers can be recruited for more than 18 months if the relevant collective bargaining agreement contains provisions to this end. That was the verdict of Germany“s Federal Labor Court (BAG) in a judgment from September 14, 2022 (case ref.: 4 AZR 83/21).
While German law stipulates a maximum assignment duration for temporary workers of 18 months, we at the commercial law firm MTR Rechtsanwälte can report that the Court“s recent ruling provides for the possibility of going beyond this statutory limit if a different maximum assignment period is agreed in a collective bargaining agreement for the relevant industry. In these instances, the collectively agreed maximum period is binding on both the assigned temporary worker as well as their employer – the temporary employment agency – according to the BAG.
The case in question arose from a lawsuit brought by a worker in response to having worked at a company as a temporary employee for just under 24 months. His aim was to establish that an employment relationship had arisen between himself and the company because the statutory maximum assignment duration of 18 months had been exceeded.
The defendant company is a member of the registered employers“ association for the metalworking and electrical industries in the German state of Baden-Württemberg – Verband der Metall- und Elektroindustrie Baden-Württemberg e.V. (Südwestmetall) – and was therefore subject to the collective agreement for temporary and agency work concluded between Südwestmetall and IG Metall, Germany“s largest industrial union. Among the terms agreed by the interest groups was a maximum assignment period for temporary workers of 48 months.
The plaintiff took the view that this collective agreement was not applicable because he was not a member of the union. His lawsuit was unsuccessful, both before the courts of lower instance and on appeal to the BAG. The Fourth Chamber of the Federal Labor Court was clear in stating that Südwestmetall and IG Metall were allowed to come to an arrangement that deviates from the statutory maximum assignment duration, noting that such an arrangement would then apply not only to the parties to the collective agreement but also to the temporary employment agency and the assigned temporary employee, regardless of whether they are bound by the collective agreement. The Court found that, in this context, a collectively agreed maximum assignment period of 48 months fell within the proper purview of the parties in question.
Similar proceedings also saw the BAG dismiss a claim (case ref.: 4 AZR 26/21) that had previously been granted by a regional labor court.
Lawyers versed in labor law can provide counsel.
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