Federal Labour Court (BAG) of 16 June 2021 – 6 AZR 390/20 (A)
The legal future of personnel secondments by public-sector companies is uncertain. The BAG has referred the question of whether personnel secondments - which are particularly common in the hospital sector - are compatible with the European Temporary Employment Directive 2008/104/EC to the European Court of Justice (ECJ).
Employer and employee dispute before the BAG about the validity of a personnel assignment. Since 2000, the employee has been employed in the mailroom of a public hospital operator under private law. This area was outsourced to a hospital-owned service company in June 2018. Since the employee objected to the transfer of his employment relationship to the service company, he has since been seconded by the employer to the service company - without any time limit - and continues to perform his duties there unchanged. The collective agreement for the public sector applicable to the employment relationship (TVöD) expressly provides for the possibility of secondment:
"Section 4 (3) sentence 1 TVöD: If employee tasks are transferred to a third party, the work performance owed under the employment contract shall be performed at the third party at the request of the employer while the employment relationship continues to exist (personnel secondment)."
Despite the clear provision in the collective agreement, the employee believes that he is not obliged to work for the service company. The provision of personnel would in fact be a case of employee leasing. This is inadmissible because the hospital operator does not have a permit for the transfer of employees and the secondment is intended to be permanent. The employee considers the exemption provision in Section 1 (3) No. 2b of the German Temporary Employment Act (AÜG), which largely exempts personnel secondments from the strict regulations on employee leasing, to be contrary to European law.
After the lower courts had rejected the claim, the BAG now referred the central legal issues of the case to the ECJ. The ECJ must therefore decide whether the provision of personnel under Section 4 (3) of the TVöD - other collective agreements in the public sector provide for similar rules - is subject to the European Temporary Employment Directive 2008/104/EC. If this is the case, the ECJ will have to answer the further question of whether the scope exception of Section 1 (3) No. 2b of the German Temporary Employment Act (AÜG), which is anchored in national law on the supply of temporary workers, is compatible with the Temporary Employment Directive 2008/104/EC.
Consequences for the practice
The referral to the ECJ by the BAG poses considerable risks for the current model of personnel secondment, which is widespread among public-sector companies. The referral to the ECJ by the BAG poses considerable risks for the current model of personnel secondment, which is widespread among public-sector companies. Since the former jobs with the employer have been eliminated, the personnel secondments are, according to the collective bargaining regulations, designed for the long term - and not only for a temporary period, as is the case with employee leasing (temporary employment). If the existing exemption in Section 1 (3) No. 2b AÜG were to be declared contrary to European law by the ECJ, this would fundamentally call into question the current practice of personnel secondment.
As long as the current exemption for personnel secondments has not been declared contrary to EU law, personnel secondments based on a collective agreement of the public sector can be continued and even new personnel secondments can be ordered. However, employers must be prepared to end this practice if the courts actually "overturn" the scope exception in Section 1 (3) No. 2b AÜG. In these cases, employers who have previously provided personnel to third-party companies will not be able to avoid terminations for operational reasons. These terminations were precisely to be avoided by the collectively agreed instrument of personnel secondment. It is hoped that the ECJ and BAG will keep these serious consequences in mind in their further decisions.
Author: Michael Riedel
Please note, this article also appeared in Beiten Burkhardt's Blog here.