FAQs for Temporary Workers
As a multidisciplinary law firm in Germany, we have a wide-range of cases which we deal with. On this front, we receive many enquiries when it comes to the legal rights of temporary agency workers in Germany. On this page we have supplied an FAQ section based on some of the more popular questions we have received on this topic.
How are my Rights as Temporary Agency Worker Regulated?
There are a number of laws in the field that govern the rights of employees in Germany and these apply to temporary agency workers as well as to more regular employees. Employment notice periods are governed by § 622 BGB while temporary agency workers further benefit from the Protection Against Unfair Dismissals Act. However, when it comes to the specifics of temporary agency work, the employee has their protections outlined in the Temporary Agency Worker Act.
The Temporary Agency Worker Act outlines the regulations in place for when a temporary agency working relationship is deemed invalid, for equality for agency workers and regular employees and in relation to the employment of foreign temporary agency workers. This Act will be referred to more often during the duration of this article.
As a Temporary Worker Who is my Employer?
If a person is a temporary agency worker they are employed by the TWA and hired out to the third party companies. In this arrangement, the worker has the same rights as other employees and their TWA is responsible for ensuring that they are treated accordingly. Such rights include the usual employment rights when it comes to issues such as notice periods, protection against unfair dismissal and so forth. The TWA is also responsible for linking the worker with the hiring company. Furthermore, it is the TWA that is the body who ensures the temporary worker is paid correctly and that the appropriate deductions are made in relation to taxes and health insurance. However, the hiring company is the one that should ensure the working environment is a safe place to work.
Can a Temporary Worker Become a full Employee?
It is possible for a temporary agency worker to become a full employee of the hiring company. This occurs should the temporary worker be working with the firm for 18 months. At this point the hiring company is given a choice of whether they want to hire the worker full-time or if they would prefer to avail of another temporary worker. However, the temporary worker has the option of remaining with the agency if they prefer. While employed by the TWA the worker has the obligation to a fair wage in accordance with minimum wage regulations. However, if they are at the hiring company for more than nine months, the hiring company is obliged to pay them at an equal rate with their fully-employed colleagues of the same level.
What Industries are Prohibited from Using Temporary Workers?
Under § 2 Temporary Workers Act it is prohibited for temporary workers to be used as mainstream workers in the construction industry. In this regards, it is not prohibited to hire such workers in more administrative roles but it is not permitted in the more traditional forms of construction work. The meaning of construction industry is defined in § 101 Sozialgesetzbuch (SGB) Drittes Buchand outlines such businesses to be those that commercially provide construction services on the construction market. Construction services under this Act refer to the “construction, repair, maintenance, modification or removal of buildings”. On the other hand companies that manufacture supplies for this industry are not taken as being in “the construction industry” for the purposes of using temporary workers.
What Actions are Deemed Illegal by the Hiring Company?
§ 9 of the Temporary Workers’ Act outlines a number of prohibitions on actions that can be taken by the hiring company. The contract by the hiring company should outline exactly what is required of the temporary worker they are hiring. While working with the hiring company the temporary worker should be treated fairly and integrated within the company itself. § 13b of the Act outlines this in greater detail as it provides examples such as entitlements to use childcare facilities and catering services within the company facilities.
Under § 8 of the Act they are also entitled to fair pay and should the worker be at the company for 15 months or more they are entitled to the same pay rate as full employees working in their position. Other actions deemed to be illegal include arrangements where the temporary worker has to pay a placement fee to be part of the hiring company and under § 13a of the Act the hiring company must inform the worker if there are vacancies in their firm to fill. For full information about illegal actions a hiring company can make regarding a temporary agency worker, please contact us directly.
What Actions are Deemed Illegal by the Agency?
§ 9 of the Temporary Workers’ Act also outlines the illegal actions that can be made by the agency. One of the illegal actions that the agency can make is through placing conditions within the contract prohibiting the hiring company from hiring the agency worker on a full-time basis. Similarly, the agency cannot place conditions in the temporary worker’s contract which would prevent them from joining a company as a full-time employee. The agency has an obligation to treat their worker with respect and is responsible for ensuring that they are paid correctly.
Can an Employer Break a Strike Using Temporary Workers?
The short answer to this issue is no. Attempting to undermine workers through the hiring of temporary agency workers is not permitted. This type of action would undermine the attempts at resolving industrial disputes in a fair manner. It is under § 11 of the Temporary Workers Act that this is regulated. Under this section, the employer cannot hire temporary workers to take over roles from workers involved in industrial dispute and they are required to inform such workers of strike actions taking place within the company.