Temporary workers can be employed for more than 18 months if the applicable collective bargaining agreement allows for it. This was decided by the BAG in a judgment dated September 14, 2022 (Ref.: 4 AZR 83/21).
The statutory maximum duration for the assignment of temporary workers is 18 months. However, according to the latest decision by the Federal Labor Court, this maximum duration can be exceeded if the collective bargaining agreement of the sector provides for a different maximum duration. This is explained by the commercial law firm MTR Rechtsanwälte. The duration stipulated in the collective agreement is then decisive for both the temporary worker and their employer, the lender, as clarified by the BAG.
In the underlying case, an employee filed a lawsuit because he had been employed as a temporary worker in a company for almost 24 months. With the lawsuit, he sought a declaration that, due to the exceeding of the statutory maximum assignment duration of 18 months, an employment relationship had arisen between him and the company.
The defendant company is a member of the Association of the Metal and Electrical Industry of Baden-Württemberg e.V. (Südwestmetall). Therefore, the ‘Collective Agreement on Temporary Work’ concluded between Südwestmetall and IG Metall applied in the company. The associations have collectively agreed that the maximum duration for temporary employment is 48 months.
The plaintiff was of the opinion that this collective agreement does not apply, as he is not a member of the union. In the lower courts, his lawsuit was unsuccessful, and the appeal to the BAG also remained unsuccessful. The Fourth Senate of the BAG made it clear that Südwestmetall and IG Metall were allowed to set a different regulation than the statutory maximum assignment duration. This regulation expressly applies not only to the collective bargaining parties but also to the lending company and the temporary worker, regardless of their union membership. The BAG decided that a collectively agreed maximum assignment duration of 48 months falls within the scope of regulatory authority.
In a comparable case, in which the regional labor court had previously upheld the lawsuit, the BAG also dismissed the claim (Ref.: 4 AZR 26/21).
Lawyers experienced in labor law can provide advice.
