The works council of company hiring temporary workers can reject the borrowing of a temporary worker on more than a temporary basis.

Cologne, NRW -- (SBWire) -- 07/30/2013 --GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Bremen, Düsseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Nuremberg and Stuttgart www.grprainer.com explains: The German Federal Labour Court (BAG) ruled in its judgment of July 10, 2013 (Az.: 7 ABR 91/11) that the works council of a company hiring temporary workers can refuse to approve the borrowing of a temporary worker on a long-term basis, as this contravenes the Act Regulating the Supply of Workers (Gesetz zur Regelung der Arbeitnehmerüberlassung (AÜG)). In the instant case, no statements were made as to the duration of “temporary” because a temporally unrestricted transfer is more than merely temporary in any case.

According to the AUG, the works council of a company hiring temporary workers must be involved before the transfer of a temporary worker. The works council can refuse to approve a hiring as per the Works Council Constitution Act (Betriebsverfassungsgesetz (BetrVG)) if the hiring contravenes a statute. The employer can then submit a corresponding application to a labour court stating that it shall act as a judicial substitute to the approval, whereupon the court must then examine whether the refusal of approval was legitimate.

The BAG clarified that borrowing on more than a temporary basis is prohibited by the BetrVG in conjunction with the AÜG, which are meant first and foremost to protect the temporary workers and staff of the company hiring temporary workers from fragmenting. The BAG explained that a distinction between permanent staff and borrowed staff could otherwise emerge at the company hiring temporary workers, which ought to be prevented. This is also the basis of the works council’s right to refuse.

The commercial transfer of workers is linked to various requirements that are regulated in the AUG. Thus, the hirer requires in principle permission in accordance with the AUG for the transfer of workers to be legal. Having said this, there are statutory exceptions here.

Under certain circumstances, it may be sensible to inform oneself in this regard in advance. A lawyer active and experienced in the field of labour law can assist in preparing tailored employment contracts which take into account the individual needs of the borrowing company.

Furthermore, it is possible to set out certain regulations in this regard in general terms and conditions. In this context, the German Civil Code’s strict provisions on permissibility as regards content must, however, be observed. These are potentially difficult for a layman to understand. Even in this context, a lawyer experienced in the fields of labour and civil law can be of assistance.

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