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Nexia Ebner Stolz

Legal Advice

Temporary staffing on a permanent basis

As long as the staf­fing agency is li­cen­sed, no em­ploy­ment re­la­ti­ons­hip is es­ta­blis­hed with the cli­ent when a tem­porary staf­fing ar­ran­ge­ment be­co­mes long term

No­wa­days it is im­pos­si­ble to pic­ture the working world wi­thout tem­porary em­ploy­ment. Howe­ver, when pu­bli­cly dis­cus­sed, it is a highly con­tro­ver­sial sub­ject. Tem­porary em­ploy­ment is cri­ti­ci­zed for dis­pla­cing per­ma­nent em­ploy­ment and gi­ving a free pass to low sala­ries. Now the BAG (The Fe­deral La­bor Court) has step­ped in and for the first time made some ad­di­tio­nal ne­cessary spe­ci­fi­ca­ti­ons in the le­gal frame­work.

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In its de­ci­sion on July 10th, 2013, it ru­led that tem­porary staf­fing that is in fact not tem­porary is not per­mit­ted ac­cor­ding to Sec. 1 (1) sen­tence 2 AÜG (Tem­porary Em­ploy­ment Act) (Az. 7 ABR 91/11).

What is the back­ground? Fol­lo­wing the chan­ges to the Tem­porary Em­ploy­ment Act (AÜG) that took ef­fect at the end of 2011, tem­porary staf­fing may only be “tem­porary“. Due to a lack of spe­ci­fi­city, this in­de­fi­nite le­gal term has so far been lar­gely igno­red in prac­tice. Ac­cor­din­gly, in most ca­ses em­ploy­ers have been con­ti­nuing to use tem­porary em­ploy­ment just as be­fore the le­gis­la­tive change. The de­ci­sion of the BAG has now put an end to this.

On De­cem­ber 10, 2013, the BAG ru­led on ano­ther mat­ter re­la­ting to the use of tem­porary staff (Az. 9 AZR 51/13). At is­sue this time was whe­ther an em­ploy­ment re­la­ti­ons­hip is es­ta­blis­hed bet­ween the tem­porary worker and the cli­ent if the use of the tem­porary worker is not ac­tually tem­porary. On that, the BAG has now made clear that no em­ploy­ment re­la­ti­ons­hip is es­ta­blis­hed bet­ween a tem­porary worker and a cli­ent un­less the staf­fing agency does not have a li­cense (Sec. 10 (1) sen­tence 1 AÜG). In the Tem­porary Em­ploy­ment Act (AÜG), law­ma­kers pur­po­sely re­frai­ned from man­da­ting the crea­tion of an em­ploy­ment re­la­ti­ons­hip with the cli­ent as the le­gal con­se­quence for using a tem­porary worker on a long-term ba­sis. EU law is no dif­fe­rent in this re­spect. It is up to law­ma­kers, not the la­bor courts, to choose from among the many pos­si­ble sanc­tions and de­ter­mine a pe­nalty.

In the case de­ci­ded, an IT pro­fes­sio­nal that was hi­red out to a hos­pi­tal ope­ra­tor from 2008 to 2011 de­man­ded a per­ma­nent po­si­tion and pay­ment of wage dif­fe­ren­ces. His re­aso­ning: the as­si­gn­ment was not ac­tually tem­porary. The­re­fore, an em­ploy­ment re­la­ti­ons­hip had been es­ta­blis­hed with the hos­pi­tal pro­vi­der. The BAG did not agree, howe­ver, hol­ding that no em­ploy­ment re­la­ti­ons­hip had been es­ta­blis­hed.

Since a ru­ling about whe­ther the tem­porary IT worker was used on a more than tem­porary ba­sis was not ne­cessary in this case, what the term “tem­porary” re­ally me­ans - at least in terms of du­ra­tion - is still an open ques­tion. There will con­ti­nue to be un­cer­tainty con­cerning the le­ga­lity of “tem­porary” staf­fing go­ing for­ward. Un­til the BAG fur­ther spe­ci­fies the li­mits of tem­porary staf­fing ar­ran­ge­ments, we will have to ac­cept the pre­sent le­gal un­cer­tainty. In any case, it is ad­visa­ble for the em­ployer to li­mit the du­ra­tion of any tem­porary em­ploy­ment.

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