The EU Temporary Employment Directive stipulates that collective agreements may deviate from the principle of equal pay if the “overall protection” of temporary workers is guaranteed.
(Photo: dpa)
Berlin Temporary employees may be treated worse in terms of pay than the permanent workforce in the hiring company. The Federal Labor Court (BAG) confirmed this practice on Wednesday.
A temporary worker from Bavaria had complained. At the beginning of 2017, she was paid 9.23 gross per hour as a picker in the distribution center at the rental company, a retailer. This remuneration corresponded to the collective agreement that the interest group of German temporary employment agencies (iGZ) had concluded with the trade unions of the German Trade Union Confederation (DGB).
The plaintiff felt disadvantaged because, according to the collective agreement of the Bavarian retail trade, regular employees would have earned 13.64 euros gross per hour for the same activity during the dispute period. She saw this as a violation of the equal treatment principle of the EU Temporary Employment Directive.
However, the directive provides for the possibility that collective agreements may deviate from the principle of equal pay if the “total protection” of temporary workers is guaranteed.
In December 2020, the Federal Labor Court first asked the European Court of Justice (ECJ) for an interpretation of the directive. The Luxembourg judges decided in December last year that temporary workers can be paid less if this unequal treatment is compensated for in the collective agreement – for example through additional free time.
Service providers welcome the decision of the Federal Labor Court
On the basis of this decision, the Federal Labor Court finally dismissed the lawsuit brought by the Bavarian temporary worker – just like the previous instances. The Erfurt judges argued that the plaintiff received compensation for the lower pay because she also received her wages from the temporary employment agency for times when she was not working in a temporary employment agency.
After the ECJ, the highest German labor court has now also confirmed the collective bargaining practice in temporary work.
(Photo: dpa)
This compensation for non-deployment times is regulated by the state in Germany and therefore does not have to be stipulated in a collective agreement.
The negotiating community for temporary work (VGZ), in which the iGZ and the federal employers’ association of personnel service providers (BAP) have joined forces, welcomed the verdict: “We continue to rely on a trusting social partnership with the DGB trade unions and continue to stand for collective bargaining autonomy”. , said VGZ negotiator Sven Kramer.
For 20 years, collective bargaining agreements have been regularly agreed and further developed on this basis, in which the interests of all those involved have always been taken into account. “It should stay that way,” emphasized Kramer.
>> Read here: Starting a career in temporary work is often just as sustainable as in other sectors
“Despite all the prophecies of doom, the feared thunder of the BAG did not materialize,” commented Alexander Bissels, partner and specialist lawyer for labor law at the commercial law firm CMS. The collective agreements for temporary work satisfied the requirements of the ECJ and could therefore continue to serve as a legal basis in the future to deviate from the principle of equality, said Bissels.
As in the case of the Bavarian plaintiff, this also applies to employees who only work on a temporary basis.
More: Industry and employers are demanding that the temporary work sector should be allowed to help recruit foreign skilled workers.