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Germany – Court challenges “temporary” use of agency workers

24 December 2012

Firms are not allowed to use temporary agency workers in permanent jobs, according to a recent judgement by the regional labour court Berlin-Brandenburg. This ruled that the works council has the right to intervene in such cases and deny the recruitment of temporary staff.

In a dispute between a company and its works council, the firm planned to hire temporary workers on fixed-term contracts for permanent positions. But the court rejected the proposal. It said that the temporary employment act (AÜG), enforced in 2011, defined the use of agency work to be of “temporary” nature.

Although the law does not state the maximum limit of a temporary assignment and is therefore open to interpretation, agency workers should not be used for roles that can clearly be filled by permanent workers, the court decided. 

It said that such an undertaking is in breach of the temporary employment act (§ 1 Abs. 1 Satz 2), which is why the works council has the right to reject such recruitment plans, according to the works constitution act (§ 99 Abs. 2 Nr. 1).

The court allowed the decision to be appealed by the federal labour court.

Critics have argued that the definition of the temporary employment act is not precise enough, allowing firms to use agency workers for longer periods, even years, without having to employ the worker directly. 

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