In the current discussion about the abusive use of contracts for
works and services, the Federal Labour Court of Berlin-Brandenburg
reached on 12 December 2012 (docket no. 15 Sa 1217/12) a
significant decision on the existence of a disguised provision of
temporary workers and pseudo contracts for works and services.
In the underlying factual situation, the claimant, who worked as
a packager, sued her employer for "equal pay". The
employer had concluded a contract for works and services with a
German limited liability company [Gesellschaft mit
beschränkter Haftung, GmbH], at whose premises the
claimant conducted her work. The employee asserted remuneration
claims on the basis of an alleged temporary work relationship. The
decisive factor in this connection was whether the "contract
for works and services" between the employer and the GmbH
could indeed be classed as a contract aimed at the performance of a
work or service or, in contrast, whether it could be classed as a
concealed provision of temporary work.
According to the findings of the Regional Labour Court of
Berlin-Brandenburg, the fact that the services were oriented
towards the needs of the employer suggested that the claimant was
integrated into the employer's business and hence a disguised
provision of a temporary worker. The existence of a contract for
works and services between the GmbH and the defendant could not be
assumed since it was only through the instructions given by the
GmbH that the subject matter of the services to be rendered by the
defendant was first determined, and hence the instructions
substantially originated from the GmbH. The performance of the
defendant was exhausted – as is typical for a "hiring
enterprise" – in the provision of the production
employees (and therewith also the claimant) to handle the needs
arising at the GmbH.
The Regional Labour Court of Berlin-Brandenburg has developed
the dogmatic delimitation between the contract types, which is to
be applied in practice. In the actual event of a disguised
provision of a temporary worker, there are also substantial risks
for the party supposedly ordering the service. This not only
concerns the subsidiary liability for social security claims, but
also possible violations of the German Temporary Employment Act. If
a contract for works and services is agreed, then more is required
than just a formally correct contract for works and services, which
already begins with the correct designation of the parties as the
ordering party and the contractor and continues with the definition
of the work or service and the liability regulations. Rather, a
further requirement is that the integration of the employees in the
business of the ordering party is avoided in case of the deployment
of external employees of the entrepreneur. In no case may the
ordering party give these employees instructions regarding the
content, nature and scope of their performance.
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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