Reform of temporary employment: What you have to consider when using external staff
The reform of the Employee Contribution Act (AÜG) has come into force since April 1, 2017. The reform should strengthen the rights of the temporary workers. This brings far -reaching changes for companies to use external staff; In particular, in particular, disclosure and concretization obligations, which also apply to old contracts and whose non-compliance have serious financial consequences for hires and lender. In the following, we have put together the most important changes and what sanctions threaten for a violation:
1. Designation and concretization obligation also for old contracts
What do I need to know?
Pursuant to Section 1 (1) sentence 5 AÜG, a temporary employment agency between the rental company and borrower must be expressly described as such from April 1, 2017 (labeling obligation) and the written form requirement in accordance with Section 12 (1) sentence 1. Furthermore, the name of the temporary agency worker must be expressly named in the contract (specification obligation, section 1 (1) sentence 6 AÜG). The distributor is also obliged to inform the temporary worker that he is active as such, § 11 Paragraph 2 Clause 4 AÜG.
This eliminates the possibility of the so -called "parachute solution" for many companies. In constellations in which a supposed service or work contract has actually been lived as a temporary employment agency, the contracting parties were able to avoid the negative legal consequences by an employee transfer permit ("storage permit") obtained by the supposed contractor as a precaution. This is no longer possible due to the new labeling and disclosure obligations.
Attention: The duties are expressly also for old contracts; that is, the fact that from April 1, 2017 also has to take place for existing temporary employment contracts.
What happens in the event of a violation of these duties?
On the one hand, a violation of these obligations means that the contract between the lender and temporary worker is ineffective (Section 9 (1) No. 1a AÜG). On the other hand, an employment relationship between the agency worker and the borrower is faked (Section 10 (1) AÜG). This legal consequence does not occur only if the temporary worker - bound to certain deadlines - submits a declaration of establishment to the Employment Agency, which is directed to ensure that the temporary worker insists on the continuation of the employment relationship. Serving this declaration is not enough. The non -compliance with the new obligations represents an administrative offense, which can be punished with fines of up to EUR 30,000.00 per violation.
2nd maximum transfer duration of 18 months
What do I need to know?
According to Section 1 (1) sentence 1 AÜG, the maximum transfer period for the same temporary worker is 18 months. After that, it must be deducted from the use of the borrower (also in another operation of the borrower). The deadline is employee -related and does not build on the workplace or the occupied area. The same workplace can therefore be filled with changing temporary workers. The period of the previous transfer by the same or another distributor on the same borrower is to be counted towards the overtime duration if there is no more than three months between the operations (Section 1 (1) sentence 2 AÜG).
The collective agreement may deviate from this maximum transfer period both up and down. If there is no collective agreement between hires and the temporary agency, deviating collective bargaining regulations can be taken over by the operating or service agreement, provided that they are covered by the scope of the collective agreement and a maximum duration of 24 months is not exceeded (Section 1 (1) sentence 3-6 AÜG).
ATTENTION: Transfer times before April 1, 2017 are not to be taken into account when calculating.
What happens in a violation?
When the maximum duration is exceeded, fines of up to EUR 30,000.00 threaten. Furthermore, the fiction of an employment relationship between temporary agency worker and borrower (Section 9 (1) No. 1b in conjunction with Section 10 (1) sentence 1 AÜG). Here, too, an exception by submitting a corresponding declaration of determination by the temporary worker is conceivable. Furthermore, the transfer permit for unreliability can be refused if there is not only minor exceeding.
3. Equal Pay
What do I need to know?
According to Section 8 (1) AÜG, temporary workers should receive the same salary as comparable employees in operational operations during the transfer. In principle, this can only be deviated from the collective agreement and then only for the first nine months of the transfer. A longer deviation is only permitted if a collective agreement provides for wage increase after a maximum of six weeks, § 8 Paragraph 4 Clause 2 Aüg and Equal Pay is granted after a period of time of 15 months at the latest.
ATTENTION: Earlier transfers in the same hirer are to be fully counted for the period of nine months if there are not at least three months between the missions.
What happens in the event of a violation of these duties?
A violation of this can lead to a fine of up to EUR 500,000.00. The temporary worker can also complain on equal pay (Section 9 (1) No. 2 AÜG). Furthermore, the hirer's transfer permit can be revoked. As a result, this can lead to the ineffectiveness of the employment contract between the lender and temporary worker and this in turn leads to a fiction of an employment relationship to the hirer.
Now you have to act!
As an entrepreneur, you will have to commit yourself before the start of the external personnel deployment whether you want to conclude a contract for work/service contract or intend to carry out a temporary employment agency. The new obligations also apply to old contracts without transitional regulation. In particular with regard to the obligation to disclose and concretization, a quick implementation is therefore required. It must be checked here in individual cases whether despite the design as a work contract/service contract, a temporary employment is actually lived and corresponding measures must be taken. In the case of Alt-Aüg contracts, it is advisable to add a system to the names of the temporary workers used.
