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Temporary workers stay temporary workers

 The German Federal Labour Court (Bundesarbeitsgericht, BAG) ruled on June 3, 2014 (docket number 9 AZR 111/13) that the coalition government’s plan to adjust the German Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, AÜG) does not authorise the courts to deviate from current statutory law. The court rather confirmed its recent jurisdiction according to which a permanent leasing out of employees does not establish an employment relationship between the company leasing the employees and the temporary worker.

 In the case at hand, the parties were in dispute about whether an employment relationship had been established between them. The defendant was a company operating hospitals. The suing employee had been leased out permanently to the defendant by a leasing company which held an unlimited license in order to lease out employees. The labour court and regional labour court denied an employment relationship between the parties. In support of her action, the employee referred to, inter alia, the coalition agreement of the coalition government according to which the German Temporary Employment Act will be amended.  

 The Federal Labour Court held that an employment relationship between the parties had not been concluded. It referred to its judgment dated December 10, 2013 (docket number 9 AZR 51/13), in which the court argued that the German Temporary Employment Act does consciously neither provide for a specific time limitation on leasing out employees nor for sanctions which would apply if a temporary employment agency in fact leases out employees permanently. The declaration of intent in the coalition agreement does not authorise the courts to deviate from this existing statutory law.

 The judgment is welcome and not a surprise given the recent leading decision only a couple of months ago. The clarification that the declaration of intent in the coalition agreement cannot change existing statutory law is a matter of course. As long as the coalition does not implement its plan to adjust the Temporary Employment Act it seems unlikely that a labour court will decide differently.