News about the AÜG – deviation from the equal pay principle also in mixed companies

As part of the commercial hiring out of employees, the hiring companies are fundamentally obliged in accordance with Section 8 Para. 1 AÜG to grant their temporary workers the essential working conditions that apply to a comparable employee of the hiring company in the hiring company's company, including wages, for the period of hiring them out to the hirer (so-called Equality principle or “equal pay / equal treatment principle”).

However, the rental company can deviate from this principle of equality by applying a collective agreement in the temporary employment industry; After the AÜG reform, however, only for a limited period of time (basically up to 9 months, if industry surcharge collective agreements apply, a maximum of up to 15 months). In this case, the rental company must only grant the temporary worker the working conditions owed under the collective agreement of the temporary employment industry by the said deadline. Within the scope of such a collective agreement, employers and employees who are not bound by collective agreements can also agree on the application of this collective agreement in accordance with Section 8 Paragraph 2 Sentence 3 AÜG.
Mixed operations
In the case of pure temporary employment agencies that only provide commercial temporary employment, it was never disputed that they could make use of this exception to the principle of equality by applying a collective agreement in the temporary employment industry. However, the situation was different for companies that, in contrast to pure temporary employment agencies, did not exclusively engage in commercial temporary employment, but only made use of this instrument in addition to their actual business purpose (so-called “mixed companies”). In the case of these mixed companies, it was highly controversial whether they could also make use of this exception by referring to the relevant collective agreements.
Restrictive handling by the Federal Employment Agency
In its business instructions, the Federal Employment Agency has taken the very restrictive view that only those mixed operations that predominantly engage in temporary employment during their working hours fall within the scope of the relevant collective agreements in the temporary employment sector (so-called preponderance principle). According to this legal opinion of the Federal Employment Agency, mixed companies that do not predominantly engage in temporary employment and employ their non-hired employees in accordance with the respective sectoral collective agreement could not deviate from the principle of equal opportunity for the employees to be hired out by applying the collective agreement of the temporary employment industry. The Federal Employment Agency maintained this legal opinion even after the Federal Labor Court had already abandoned the principle of collective bargaining unity in its ruling of July 7, 2010 (4 AZR 549/08). In practice, the companies concerned tried to respond to this restrictive approach by the Federal Employment Agency by setting up independent company departments for temporary employment, but this was often difficult to implement organizationally.
Decision of the Federal Social Court
In a current decision from October 12, 2016 (ref.: B 11 AL 6/15 R) Link: http://juris.bundessozialgericht.de/cgi-bin/rechtsprechung/document.py?Gericht=bsg&Art=en&sid=c13c3a2fff372298ce830cb999b092ff&nr=14488&pos=1&anz=12  Fortunately, the Federal Social Court has now clarified this long-standing dispute in the interests of the companies concerned and has clearly rejected the restrictive legal opinion of the Federal Employment Agency. According to the decision of the Federal Social Court, “mixed companies” that do not primarily engage in temporary employment may also deviate from the equal opportunity principle of the AÜG by referring to the collective agreements of the temporary employment industry in their employment contracts.
Neither the wording nor the meaning and purpose of the AÜG requires the preponderance principle to apply to mixed companies that are not bound by collective agreements. It is also not clear from the relevant collective bargaining agreements between the BZA and the DGB collective bargaining association that only companies that hire out more than 50% employees can deviate from the principle of equality by applying temporary employment collective agreements.
outlook
The Federal Employment Agency has now reacted to the Federal Social Court's decision and adjusted its business instructions. It remains to be hoped that the parties to the collective agreement will not, in response to the Federal Social Court's decision, restrict the current relevant regulations on the scope of application of temporary employment agreements to the detriment of mixed companies.