Is it permanent or temporary

Can “permanent” be “temporary”?

From Dr. Christian Bloth, lawyer, Mannheimer Swartling, Frankfurt am Main

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The labor market policy debate about temporary work, which on the one hand is classified as almost dangerous in terms of labor market policy, but on the other hand as a necessary instrument for the flexible structuring of labor demand, is naturally reflected in labor law discussions on the Temporary Employment Act (AÜG). Even a term as harmless as “temporary” can trigger divergent decisions by labor courts. If Section 1, Paragraph 1, Clause 2 of the AÜG states that “the transfer of employees to hirers is temporary”, the question arises of what “temporary” is and what the consequences are if the deployment of an employee is more “permanent” than "Temporarily" appears.
In 2003, the legislature removed the maximum time limit for hiring out an employee of two years. As of December 1st, 2011, the aforementioned § 1 Paragraph 1 Sentence 2 AÜG was inserted into the law. The explanatory memorandum for the law states that the law serves to “clarify” that it regulates a “temporary hiring” model in which the hiring out to the respective hirer is temporary compared to the employment contract between the hirer and the temporary worker. The term "temporarily" is understood as a flexible time component and explicitly no precisely defined maximum lease periods. But what applies if the hiring out is more likely to be "permanent" for the individual employee, if he is de facto only deployed over a period of several years with one employer - even in a "regular job"?

Will a not only “temporary” assignment become a permanent employment relationship?
Two decisions by the Berlin State Labor Court - one from October 16, 2012 (file no. 7 Sa 82/12), the other from January 9, 2013 (file no. 15 Sa 1635/12) - were based on such a constellation, each essentially the same. The 7th and 15th chambers of the LAG came to diverging results. The respective plaintiffs worked as nurses for several years at a hirer who operated several clinics. The respective employment contract was with a personnel service provider who belonged to the same group as the operator of the clinics. Both plaintiffs were only employed in one hospital during the entire period. The lender was bound by a collective agreement as a member of the Association of German Temporary Employment Companies. Incidentally, it did not appear on the market as "advertising". The two plaintiff employees asserted that their employment relationship did not exist with the lender, but with the borrower, and requested that the borrower be ordered to pay any difference in wages to the lender. While the 7th Chamber dismissed the action, the 15th Chamber upheld the action before it. Both chambers allowed the appeal to the Federal Labor Court, so that (hopefully) there is an opportunity for the BAG to comment.

Does the works council have the right to refuse consent in the event of a more than “temporary” assignment?
A discussion of the content of the term “temporary” appears necessary, also from the point of view of the Works Constitution Act. According to § 99 BetrVG, the works council is allowed to refuse the approval of a hiring - which also includes the use of temporary workers - if this “violates a law”. For example, the works council at the BMW plant in Leipzig refused to approve the deployment of 33 employees who had already been employed at the plant for a longer period of time before their “new” assignment. The dimension of this provision is clear from the fact that, according to the decision, BMW AG planned to employ around 1,100 temporary workers at its Leipzig plant in 2012. While the Leipzig Labor Court saw no reason to refuse consent, the Lower Saxony LAG came to the conclusion in a decision of September 19, 2012 (Az. 17 TaEV 124/11) that the works council would have the right to refuse consent if temporary agency workers were to be employed on a permanent basis at a "regular workplace" so as to reduce labor costs. In this case, the employer, a newspaper publisher, had already informed the works council in 2006 that it intended to fill all new positions only through temporary work. The works council disagreed with this in June 2011 on the occasion of filling a position as a personnel officer. The Lower Saxony LAG - like the 15th Chamber of the Berlin-Brandenburg LAG - considered this to be a case of "institutional abuse of law" and assumed a violation of the principles of good faith (§ 242 BGB). The Lower Saxony LAG is of the opinion that the EU directive on which the term “temporary” is based should “counteract undesirable socio-political developments and the misuse of the instrument of temporary agency work”. This means that the permanent leasing of temporary workers is not permitted. The legislator provides for the "permanent employment relationship" as a rule, which is why, according to § 13a AÜG, temporary workers are to be informed about jobs to be filled in the deployment company.

Not just "temporarily" - no legal consequence
The 7th Chamber of the LAG Berlin-Brandenburg and the Labor Court Leipzig, on the other hand, are of the opinion that the law does not provide for any legal consequences in the event that a release appears to be "permanent" and not just "temporary". The legal consequence of Section 1 (2) AÜG is not related to this case, according to which, if the lender does not take on the "usual employer obligations or the employer risk", it is assumed that he is "running an employment agency", nor will - which would have been obvious - § 10 AÜG applied to this case. According to this, if the employment contract with the temporary worker is ineffective due to the lack of permission from the lender, an employment relationship between the borrower and the temporary worker is deemed to have come about. This does not necessarily lead to the existence of a permanent employment relationship, but possibly also to the existence of a fixed-term employment relationship if the provision of the employee was intended for a limited period.

It remains to be stated that the legislature did not see any need to attach the sanction of the existence of a permanent employment relationship to this, even in the event that a permit was not available. Furthermore, as is often the case in labor law, the question arises of the extent to which labor courts may become “substitute legislators”. It is extremely doubtful whether this is possible in cases in which the legislature has seen the problem of the not only temporarily leased employee and has nevertheless refrained from regulating a legal consequence - even just a time limit. The fact that labor courts are called to intervene appears doubtful with regard to the distribution of competences in legislation and case law. For the user of the law, this fragmentation of the jurisprudence is a hindrance, since reliable planning is hardly possible. The in-house personnel service provider is, if it wants to act cautiously, almost obliged to deploy employees regularly to various companies in the group. It remains to be seen whether this is in the interests of the employee concerned, who also has an interest in the stability of his place of work. A clarifying word from Erfurt is all the more desirable in order to make this debate a temporary one.

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