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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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