The Federal Labor Court has decided an exciting case on group privilege in its judgment of November 12, 2024 (case no. 9 AZR 13/24). According to this, the hiring company cannot rely on the group privilege in the Temporary Employment Act (AÜG) when a company belonging to a group assigns an employee to another group company for several years from the start of the employment relationship.
1. FACTS
The plaintiff was employed as a seat maker at S-GmbH from July 2008 to the end of April 2020. He carried out his contractually agreed work on the factory premises of the defendant, a company in the automotive industry. The defendant and S-GmbH are affiliated companies. The exact circumstances under which the plaintiff performed his work are disputed between the parties.
The plaintiff is of the opinion that there is an agreement between the parties Section 10 (1) iVm § 9 para. 1 AÜG an employment relationship was established because he had acted in violation of the provisions of the AÜG was employed as a temporary worker. The contractual cooperation between the defendant and S-GmbH is to be qualified as a temporary employment contract and not as a service or work contract.
The Hanover Labor Court and Lower Saxony State Labor Court dismissed the action on the grounds that the requirements of the § 1 Paragraph 3 No. 2 AÜG for the application of the group privilege to be affirmed because the plaintiff had not been hired and employed for the purpose of being hired out. Following the plaintiff's appeal, the Federal Labour Court overturned the appeal judgment and referred the matter back to the Higher Labour Court for a new hearing and decision.
2. DECISION
According to the BAG, the group privilege is also excluded if the employee is hired for the purpose of temporary employment or The conjunction “and” in § 1 Paragraph 3 No. 2 AÜG is to be understood as a list of the facts described. The BAG is of the opinion that it is in line with the will of the legislator that the requirements do not have to be met cumulatively. According to the BAG, employment for the purpose of temporary employment generally occurs when the employee is continuously employed by the group-affiliated company for years from the start of employment. Such a practice indicates a corresponding employment purpose.
The Federal Labour Court has referred the matter back to the State Labour Court for further discussion and decision. The State Labour Court will now have to make further findings on the plaintiff's integration and obligation to follow instructions in order to determine whether (hidden) temporary employment took place.
3. CONCLUSION
The decision of the Federal Labor Court has enormous implications for corporate practice. Group companies are advised to always carefully check in future whether the recruitment and employment of employees is for the purpose of transferring them to a group-affiliated company. If this is the case, temporary employment with all the associated formal requirements may have to be considered. In particular, the necessary permission to transfer employees according to § 1 Paragraph 1 Sentence 1 AÜGIf such a permit is not available at the time of transfer, this may be considered an administrative offence under § 16 Paragraph 1 No. 1 AÜG get ranked.
