In a decision of 16 June 2021 (6 AZR 390/20 (A)), the German Federal Labour Court (Bundesarbeitsgericht, ‘BAG’) referred a question to the ECJ for a preliminary ruling that has been a controversial issue in Germany for some time. The question is whether the possibility of a permanent supply of temporary workers, which is referred to as ‘personnel supply’ (Personalgestellung) in the context of the collective agreement for the public sector, and the exemption from the scope of the German Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, ‘AÜG’) pursuant to Section 1(3) No. 2b AÜG, which allows this provision in the collective agreement, violates the provisions of Directive 2008/104/EC on temporary agency work (the ‘Temporary Agency Work Directive’). Depending on the outcome of the ECJ’s decision, this could have a significant impact on staff leasing often practised in companies operating in the public sector. |
Search result: 8 articles
Case Reports |
2021/33 Does the concept of personnel supply in the public sector violate the Temporary Agency Work Directive? (GE) |
Journal | European Employment Law Cases, Issue 3 2021 |
Keywords | Temporary Agency Work |
Authors | Othmar K Traber |
AbstractAuthor's information |
Case Reports |
2020/40 Holiday entitlement in the release phase of partial retirement according to the so-called ‘block model’ (GE) |
Journal | European Employment Law Cases, Issue 3 2020 |
Keywords | Paid Leave, Part-time work, Pension |
Authors | Othmar K. Traber |
AbstractAuthor's information |
The Federal Labour Court of Germany (Bundesarbeitsgericht, ‘BAG’) had to decide on a case in which an employee claimed vacation entitlements for the release phase of a partial retirement scheme. Because the employee was released from his work obligation during the release phase of the partial retirement under the so-called ‘block model’ he was not entitled to statutory leave so that the lawsuit was unsuccessful in the final instance. |
Case Reports |
2020/35 Employment contract for an indefinite term with exclusion of work and remuneration for a certain period is valid and does not conflict with the law on fixed-term work (GE) |
Journal | European Employment Law Cases, Issue 3 2020 |
Keywords | Fixed-Term Work |
Authors | Othmar K. Traber |
AbstractAuthor's information |
The Federal Labour Court of Germany (Bundesarbeitsgericht, ‘BAG’) had to decide on a case in which an employee argued that his contract was not terminated by a provision that restricted the mutual duties to a certain time period for the yearly season within his contract and that the employer had to employ him during the off season. However, his lawsuit was unsuccessful as the Court found that, even though he did have an indefinite contract, the employer was not obliged to employ and pay him during the off season due to the valid provision of fixed-term employment for the time from April to October during the time of the season. |
Case Reports |
2019/50 Damages for overtime work exceeding rules of the Working Time Directive can be subject to preclusive periods (GE) |
Journal | European Employment Law Cases, Issue 4 2019 |
Keywords | Working time, Miscellaneous |
Authors | Othmar K. Traber |
AbstractAuthor's information |
The Federal Labour Court had to decide on a case in which an employee asserted claims for damages against his public employer on account of an overtime regulation which infringed European law. However, because he had failed to comply with the time limits, his lawsuit was unsuccessful in the final instance. |
Case Reports |
2019/18 Consideration of pre-employment as a freelancer in terms of checking fixed-term contracts by courts (GE) |
Journal | European Employment Law Cases, Issue 2 2019 |
Keywords | Fixed-Term Work |
Authors | Othmar Traber and Daniel Hilmer |
AbstractAuthor's information |
The German Federal Labour Court (Bundesarbeitsgericht, the ‘BAG’) has held that pre-employment as a freelancer must be taken into account in relation to the number of years having been with a firm as a freelancer when assessing the legality of a fixed-term contract due to the character of the specific deployment. |
Case Reports |
2018/29 Continued application of church labour law for secular employer after transfer of undertakings by means of a dynamic referral clause (GE) |
Journal | European Employment Law Cases, Issue 3 2018 |
Keywords | Transfer of undertakings, Employment terms |
Authors | Othmar K. Traber |
AbstractAuthor's information |
In the aftermath of the ECJ’s ruling in the Asklepios case (C-680/15), the German Federal Employment Court (Bundesarbeitsgericht, hereinafter: BAG) held a dynamic referral clause valid following a transfer. |
Case Reports |
2017/52 Greek austerity bills do not apply to Greek citizens employed in Germany (GE) |
Journal | European Employment Law Cases, Issue 4 2017 |
Keywords | Fundamental rights |
Authors | Othmar K. Traber |
AbstractAuthor's information |
The highest administrative court in the Netherlands has delivered a razor-sharp ruling on the intra-community service provision set out in Articles 56 and 57 of the Treaty on the Functioning of the European Union). This concerns ‘new’ EU-nationals who are still under transitional measures with regard to access to the labour markets of ‘old’ EU Member States. The judgment was preceded by a request from the Chairman to a State Councillor Advocate General to deliver his opinion on various aspects of punitive administrative law practice in the Netherlands. Both the opinion and the judgment are a welcome clarification and addition (or even correction) on the practice. |
Case Reports |
2017/38 What are the consequences for vacation entitlement where the number of working days changes during the year? (GE) |
Journal | European Employment Law Cases, Issue 3 2017 |
Keywords | Working time and leave, Collective agreement |
Authors | Othmar K. Traber |
AbstractAuthor's information |
This decision of the German Federal Labour Court (‘Bundesarbeitsgericht’, or ‘BAG’) concerns what happens to leave entitlement if the employment contract is amended in the middle of the year and the number of working days changes from a four-day week to a five-day week. |