Temporary workers must be taken into account as part of the co -determination law (MITStBestG) if the operation takes place on more than six months of existing jobs!
At least that's what the OLG Celle sees (decision of September 7, 2018 - 9 W 31/18), contrary to the absolutely prevailing opinion. The revision is approved. Now it is at the Federal Court of Justice.
According to the will of the OLG Celle, the following applies:
- Section 14 paragraph 2 sentence 6 AÜG must be interpreted in a job.
- It follows from this that temporary workers can be counted when determining the number of employees generally employed in accordance with Section 1 (1) No. 2 MITStBestG if they are used in jobs, which as such usually exist and are used as such.
Facts
As part of a status procedure in accordance with Section 98 AktG, the parties argue about the question of whether a co -determined supervisory board must be formed as a result of the consideration of temporary agency workers. The complainant is that of the respondent (BG.) To 2), an eight German locations in the logistics sector operating, existing overall works council (GbR). BG. 1) is the superior company of the BG. 2), which is also organized as a GmbH, which does not work on the market and not an employee, which holds 95 % of the BG. The Bg. To 2) recently employed an average of around 1,550 permanent employees, and around 620 temporary workers. A good half of them are employed by more than six months. Overall, the number of all employees (stem and temporary workers) exceeds the threshold of 2,000 employees. The threshold is not reached without taking the temporary workers into account. Even when taking into account the temporary workers who only work over six months, the threshold is not exceeded. The GbR claims the formation of a supervisory board according to MITStBestG, in the alternative according to the third party participation law. The LG rejected the main application and gave the auxiliary request.
Justification
The GbR's complaint against this was successful. According to Section 1 (1) i. V. M. §§ 6, 7 MitbestG in the company organized as a GmbH with usually more than 2,000 employees should be formed in an equal supervisory board. The number of regular employees are based on the number of employees, which is generally characteristic of the company. According to this, the number of employees should be based on the largest part of the year.
The question is unclear whether and under what conditions must be taken into account in this respect. Due to the new version of Section 14 (2) AÜG to take into account temporary agency workers with a more than six -month period of deployment, the former view that temporary workers could never be taken into account could not be recorded. However, it is open whether this provision requires an employee -related consideration, which on the actual or planned use of the individual temporary worker over six months (view 1), or whether a job -related perspective should be created how many jobs are regularly occupied beyond six months (also changing - temporary workers (view 2).
The OLG Celle follows the second view, since the wording of Section 14 (2) sentence 6 Aüg stimulates an understanding that is abstract by individual employees. Otherwise, the "respective" period of time should have been switched off. This perspective also agreed with the intention of the legislator in the adaptation of the Federal Labor Court Rspr. After that, there are more than 2,000 employees to be taken into account in the present case. The number of temporary workers has always increased in the past, so that the workplace -related consideration has a continuous use of temporary workers that have always exceeded six months.
Practical information
With its decision, the OLG Celle again pushes a question that was actually decided in the literature. The discussion is of considerable practical relevance, since a job -related perspective contributes to further restricting circumvention options. However, it logically removes from the employee reference. After all, a job can also be occupied by a computer. What then? It remains to be seen how the BGH positions itself. In any case, it says again: Eyes of advice and design in the context of employee -determined supervisory boards!
