Your attorneys specialized in labour leasing labour leasing
Employee/ staff leasing
Employee / staff leasing contract
In recent years, the legal requirements for the drafting of employee / staff leasing contracts increased significantly. There are three reasons for this:
1. AÜG reform in 2017 and "concretization".
Although the last major AÜG reform was a while ago, it has meant that the wording in contracts has to be much more precise than before. The most important example here is the concretization in the employee leasing contracts, which has been mandatory since the reform and is also a constant point of contention between the Federal Employment Agency and the leasing companies.
- Is the written form still required for this or is text form (i.e., an exchange by e-mail) also sufficient?
- How must the contracts be structured if the original signature is to be dispensed with?
- Are “contingent solutions” still required in practice, or can the power of attorney solution be used, whereby one party signs the contracts for both parties?
- Can the concretization also be done in tabular form?
Thus, on the one hand, it is a question of choosing the right model for the contract, but on the other hand, it is also a question of the correct application of the model then chosen or of an appropriate individual adaptation.
2. Requirements of case law
In 2 court decisions from 2019 and 2020, the Federal Labor Court (BAG) has decisively tightened the requirements for an effective application of the collective agreements for employee / staff leasing of iGZ and BAP.
On October 16, 2019 – 4 AZR 66/18 – the BAG ruled that
a deviation from the principle of equality by reference in the employment contract pursuant to Section 9 No. 2 Hs. 3 AÜG old version is only possible if a relevant collective bargaining agreement is fully applied by the underlying employment contract. This is because only a full reference to the collective agreement adequately takes into account the interests of the leased employees. In contrast, a mere partial application of collective agreements is not sufficient.
All contracts must therefore be checked carefully for any hidden deviating agreements. These are only permissible in favor of the employee or with regard to items not regulated in the collective agreement.
In its ruling of December 16, 2020 – 5 AZR 131/19, the BAG added that
every employment contract requires an effective “reference and collision clause” so that it is clear in every case how differences in different collective agreements are to be resolved
only the collectively agreed working time of 35 hours/week can be agreed in employment contracts (however, there will be changes in the collective bargaining agreements as of October 1, 2022, which will allow higher working times in individual cases)
waiving working time accounts is not more favorable for employees and is therefore not permitted; individual solutions are required here.
3. Changes in auditing practice
The first two changes, among others, have led to a considerable change in the examination practice of the Federal Employment Agency. Contract audits now represent a very significant focus in application procedures and very often lead to objections that can result in the permit not being granted or only being granted with considerable delays.
To name just a few examples:
In the opinion of the German Federal Employment Agency, clauses are inadmissible,
- which provide for a working time account in equal treatment employment contracts
- which provide for the application of collective bargaining agreements for the supply of temporary workers only on a deployment-related basis
- do not contain a collision clause or contain an incomplete collision clause
- provide for a working time of more than 35 hours, although the sectoral collective agreements now permit longer working times in exceptional cases
- the fact that both parties have not signed the specifics of the temporary employment contracts
- pre-printed data in the sample contracts
- missing or insufficient references to the remuneration of the temporary worker in the case of non-assignment
The Federal Employment Agency also tends to not accept contracts for short-term temporary employment of students.
4. Our services
- Advice on the choice of the right type of contract
- Provision of suitable sample contracts (employment contract, employee leasing contract)
- Individualization of these sample contracts
- Representation in negotiations in this regard with the Federal Employment Agency