Besides the previously presented decisions of the Federal Labour Court, temporary employment has also occupied the courts of lower instance. The Regional Labour Court [Landesarbeitsgericht, LAG] of Berlin-Brandenburg had to deal with the question of when the deployment of temporary workers can be classed as “provisional”. Section 1 of the German Temporary Employment Act [Arbeitnehmerüberlassungsgesetz, AÜG] in the version applicable as of 1 December 2011 states namely: “Employees are provided to the hiring enterprise on a provisional basis”. The law does not regulate in greater detail when one can assume “provisional” deployment and which legal consequences arise in the case of temporary work that is not only of a provisional nature, in particular, whether an employment relationship with the hiring enterprise is established in this case. Supreme Court clarification of these questions is still outstanding. The Regional Labour Court of Berlin-Brandenburg has now caused a stir with two decisions in less than three months:
By judgement dated 16 October 2012 the 7th Chamber of the Regional Labour Court of Berlin-Brandenburg ruled that no employment relationship with the hiring enterprise is established even in case of the provision of temporary workers that was not only of a provisional nature (docket no.: 7 Sa 1182/12). In the case underlying the decision, the subsidiary enterprise of a hospital operating company with a licence to supply temporary workers supplied the latter with the claimant, who had been employed as a nurse for a total of four years in temporary employment. In her complaint, the employee upheld that her four-year deployment could no longer be classed as a “provisional” supply of temporary work. For this reason, an employment relationship with the sued hospital had been established. The 7th Chamber of the Regional Labour Court of Berlin-Brandenburg dismissed the complaint. Whether or not a period of four years can still be classed as a “provisional” supply of manpower remains open. The claimant’s asserted legal consequence of the establishment of an employment relationship was, in the opinion of the Regional Labour Court of Berlin-Brandenburg, not envisaged by the legislator for this event. In consequence, even in case of the long-term supply of temporary workers – as with the absence of a permit to supply manpower – a fictitious employment relationship between the temporary worker and the hiring company is not established.
In a parallel case with the same defendant, the 15th Chamber of the Regional Labour Court of Berlin-Brandenburg ultimately came to a different decision (judgement dated 9 January 2013, docket no.: 15 Sa 1635/12): The consequence of the deployment of a temporary worker in a permanent employment position is that an employment relationship is established between the hiring enterprise and the temporary worker. The background of this decision was that the hiring company used – via the company’s own temporary employment agency – temporary workers as nurses in permanent employment positions for which no own permanent staff are employed. Although the manpower supplier has a licence to provide temporary workers, the Chamber decided that a provision of temporary work on a constant basis was not provisional and therefore not covered by the licence granted. Pursuant to Sec. 10 para. 1 AÜG, the lack of a licence to supply temporary workers led to the establishment of an employment relationship between the temporary worker and the hiring enterprise.
Both Chambers have admitted the appeal on points of law, which means that the Federal Labour Court will have the opportunity to comment on the revised version of Sec. 1 para. 1 AÜG and to clarify the legal situation for the legal practitioner. Such a decision can hardly be expected before the end of this year, however. Until such time, enterprises should be careful about indefinitely filling permanent employment positions with temporary workers, in order to avoid accidently establishing an employment relationship with the temporary worker.