Is this helpful for companies during the Corona-related lockdown?
Due to the Corona crisis, certain sectors have an increased demand for workers (e.g., food trade or logistics companies). In other sectors, however, such as catering, employers can no longer employ their staff. Is it possible to unbureaucratically supply workers to another company within the scope of the AÜG in this situation? Can underemployed workers be matched under the AÜG without risk with companies urgently seeking personnel?
The AÜG provisions provide a strict legal framework for the supply of temporary staff. This also applies to the exemptions pursuant to Art. 1 Sec. 3 AÜG. According to technical literature, an “occasional supply of temporary workers” exists only if
- the workers are not hired and employed for temporary employment purposes,
- the employees agree to the temporary employment,
- the temporary employment is unforeseeable and has occurred at short notice (provision of temporary staff planned in advance is not covered by the exemption’s applicability. There are no precise guidelines as to how many workers can be supplied. There is no corresponding case law).
- The term of the temporary employment should not exceed 3 months.
If these requirements have been met, a permit for the supply of temporary staff is not required. Furthermore, the principle of equality pursuant to Art. 8 AÜG (equal pay) is not applicable.
In its announcement of March 23, 2020, the German Federal Ministry of Labor and Social Affairs (“BMAS”) has already stated that there is a need to provide employees to other companies for work at short notice and without any red tape during the Corona crisis. In the Federal Ministry’s view, this is possible within the scope of the AÜG’s existing provisions. A legal amendment for the crisis is not required. The BMAS assumes that a temporary employment is also possible without the required permit if the reason for the temporary employment occurred at short notice and has been unforeseeable and if the temporary employment is limited in time to the current crisis situation and is not intended to be permanent. As already explained, however, the supply of temporary workers should not exceed 3 months even under this exceptional provision. However, the Ministry’s legal opinion according to which the principle of equality is applicable is not tenable. The AÜG expressly states that the AÜG’s provisions do generally not apply, and thus the principle of equal pay does not apply either.
My practical tip
Companies maintaining a friendly relationship with each other can provide temporary workers under the exemption provision of Art. 1 Sec. 3 lit. 2a AÜG if this is required at short notice, has been unforeseeable due to the Corona crisis and does not last longer than 3 months. However, the provision of staff must not take place in the construction industry under any circumstances. Due to the AÜG’s very strict regulations, legal advice should be sought in any case for these so-called "personnel partnerships" in order to distinguish the privileged provision of staff from a provision of staff requiring a permit. This also applies during the lockdown. An illegal provision of staff should be avoided by all means, as this might entail high fines, the fiction of employment relationships with the hirer and might, in the worst case, even constitute a criminal offense.