Temporary agency workers cannot be charged with ‘negative’ working hours

A temporary employment agency is not allowed to charge an agency worker’s working time account with ‘negative’ hours, whenever the worker is not rented out to a client. The regional labour court Berlin-Brandenburg ruled such action to be a violation of the German Commercial Agency Work Act (Arbeitnehmerüberlassungsgesetz, AÜG). The agency worker’s right to remuneration cannot be validly revoked or limited by the employment contract if the employer is in default of acceptance of the worker’s services (Landesarbeitsgericht Berlin-Brandenburg, December 17, 2014, docket no. 15 Sa 982/14).

The defendant is a temporary employment agency and the plaintiff is one of his employees, who is rented out to clients as a temporary agency worker. The plaintiff received a fixed monthly salary based on contractually agreed working hours, regardless of the hours actually worked with clients. Worked hours were recorded on a working time account. Whenever the defendant was not able to lease out the plaintiff to one of his clients, he recorded these hours as ‘negative’ hours on the plaintiff’s working time account, so that those ‘negative’ hours were deducted from the actually worked hours. The court held this to be unlawful. According to the court, the applicable tariff agreement does not permit the reduction of actually worked hours by such ‘negative’ hours. The economic risk of not being able to rent out an agency worker must not be shifted to the agency worker by using a working time account. It must be borne by the agency.