Aktualisiert am:
Labour Court Herford, May 4, 2011, 2 Ca 144/11
According to § 9 No. 2 of the German Temporary Employment Act (AÜG), agreements that provide for worse essential working conditions, including pay, for temporary workers compared to those applicable to comparable employees at the borrowing company are invalid.
Thus, temporary workers are generally entitled to the same pay and working conditions as the permanent staff at the borrowing company.
However, § 9 No. 2 AÜG also allows the borrower (temporary employment company) to apply different collective agreements that may justify unequal treatment.
Almost all temporary employment companies have taken advantage of this provision and often applied collective agreements from the Collective Agreement Community CGZP to their employment contracts.
By ruling on December 14, 2010 (1 ABR 19/10), the Federal Labour Court established that the CGZP is not a bargaining entity.
Based on this ruling, there have already been several decisions requiring temporary employment firms to pay the difference amounts to temporary workers.
A recent ruling is the one mentioned above from the Labour Court of Herford.
Facts and Employment Relationship
The plaintiff had been employed as an assistant with the defendant, a personnel leasing company with over 600 employees, since May 20, 2010. The original employment contract stipulated that the working services and obligations were to be determined according to the applicable collective agreements, company agreements, or individual instructions from the employer. On June 23, 2010, an addendum was made specifying the applicable collective agreements starting from July 1, 2010. The defendant initially paid the plaintiff €7.35 per hour, increasing to €7.60 from October 2010.
Collective Agreements and Remuneration
According to the addendum, the collective agreements of the Christian Trade Union Community for Temporary Work and Personnel Service Agencies (CGZP) were to be applied. These included, among other things, framework agreements and wage agreements. Upon inquiry by the plaintiff’s representative, it was found that the borrowing companies paid higher hourly rates for comparable positions: €9.02 at one borrowing company and €11.60 at another.
Lawsuit and Equal-Pay Principle
Under the Equal Pay Principle, which mandates equal pay for equal work, the plaintiff sued for payment of the difference amounts. She claimed a total of €2,457.97 for the period from May 2010 to January 2011. The plaintiff relied on the Federal Labour Court’s decision of December 14, 2010, which had established that the CGZP was not a bargaining entity.
Decision of the Labour Court Herford
The Labour Court of Herford ruled in favor of the plaintiff and found that the defendant must pay the difference amounts. The defendant, as the lender, was obligated to pay the difference to the equal-pay wage in accordance with § 10 Abs. 4 of the AÜG, since the collective agreements used by them were invalid. The Federal Labour Court had already decided on December 14, 2010, that the CGZP was not a bargaining entity. As a result, the collective agreements relied upon by the defendant were deemed ineffective.
Legal Implications and Conclusions
The Labour Court followed the Federal Labour Court’s case law and concluded that the CGZP had also been non-bargaining in the past. Consequently, all collective agreements referring to the CGZP were invalid for both the past and the future. The Federal Labour Court’s decision of November 15, 2006, confirmed that such determinations regarding bargaining ability are retroactively effective unless special circumstances are presented that justify a different assessment. In this case, there were no such circumstances that would indicate the bargaining ability of the CGZP in the past.
In summary, the defendant was required to pay the difference amounts according to the Equal Pay Principle because the collective agreement regulations applied by the defendant were invalid.
Source: Labour Court Herford
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