Temporary employees and co-determination in the company

BAG, ruling dated 4.11.2015, 7 ABR 42/13

Under the provisions of the MitbestG (Co-Determination Act), the employees of a company/group elect their Supervisory Board representatives either directly or via delegates – depending on the total number of employees.

German labor law contains a host of threshold levels, where the rights of the works council, the size of bodies or election procedures depend on the number of employees. In (almost) every case, express reference is made to Section 5 BetrVG (Works Council Formation Act) in terms of the definition of the employees to be counted. The MitbestG also stipulates that the election procedure (via delegates or direct) also depends on the number of employees.

Employees as defined by law are employees

Section 5 BetrVG defines “employees within the meaning of this law” as “workers and salaried staff…”. Historically, the view was always taken that these must be employees of the respective company affected, i.e. an existing employment relationship with the company was postulated.

Change of mood

The success of temporary employment called this view into question. The 2001 amendment to the BetrVG expressly introduced the right to vote (not however the right to stand for election). On March 13, 2013, the BAG (Federal Labor Court) abandoned the requirement of a contractual relationship between employee and employer. It subsequently postulated that – particularly with regard to threshold levels – the term employee in Section 5 BetrVG was to be interpreted in standard-purposeful manner.

Consequence

It also maintains this line in the ruling dated November 4, 2015, and now also includes temporary employees in the calculation of the staff under the MitbestG. Since, under Section 7 Sentence 2 BetrVG – they also have the right to vote, this is only logical.

Summary

The decision is a continuation of the new line adopted by the BAG since 2013, and simultaneously an anticipation of the legislative decision. The latest draft of the AÜG (Law on Temporary Employment) is supposed to expressly regulate consideration of temporary workers with the known threshold levels.