Equal treatment and equal pay

Tem­po­rary employ­ees must be treat­ed in the same way as the per­ma­nent employ­ees in the hirer’s com­pa­ny (so-called reg­u­lar employ­ees). This right to equal treat­ment results from sec. 8 (1) sen­tence 1 of the Ger­man Act on Tem­po­rary Employ­ment (AÜG, Arbeit­nehmerüber­las­sungs­ge­setz) and applies to all essen­tial work­ing con­di­tions.

Equal pay is a sub­set of equal treat­ment. If the tem­po­rary employ­ee is to be treat­ed in every respect in the same way as the reg­u­lar employ­ee, this is referred to as the prin­ci­ple of equal treat­ment.

If a tem­po­rary employ­ee is be treat­ed like a reg­u­lar employ­ee only in finan­cial terms (‘same work, same pay’), this is then referred to as equal pay.

Essential working conditions

‘Essen­tial work­ing con­di­tions’ are all con­di­tions agreed under Ger­man labour law. Details of this dis­tinc­tion are con­tro­ver­sial. How­ev­er, these def­i­nite­ly include wages, vaca­tion, work­ing hours, notice peri­ods and the keep­ing of a work­ing time account.

When com­par­ing the work­ing con­di­tions of the tem­po­rary employ­ment agency with those of the customer’s com­pa­ny in order to ensure equal treat­ment of the tem­po­rary employ­ee, a com­par­i­son of char­ac­ter­is­tic groups must be made. This means that an iso­lat­ed view of the indi­vid­ual work­ing con­di­tions is not accept­able; instead, they must be assigned to a so-called char­ac­ter­is­tic group, such as ‘hol­i­day’ or ‘pay’.

Derogations

Dero­ga­tion from the prin­ci­ple of equal treat­ment pur­suant to sec. 8 (2) sen­tence 1 AÜG is pos­si­ble if a col­lec­tive agree­ment for tem­po­rary work applies to the rela­tion­ship between the employ­er and the tem­po­rary employ­ee.

in which case the tem­po­rary employ­ee must be treat­ed in accor­dance with the col­lec­tive agree­ment.

How­ev­er: Enti­tle­ment to equal pay can only be waived for a peri­od of nine months. This means that even after the 9‑month peri­od of employ­ment, the hir­er must still treat the tem­po­rary employ­ee in accor­dance with the col­lec­tive agree­ment, but the tem­po­rary employ­ee must receive at least the pay received by com­pa­ra­ble reg­u­lar employ­ees of the hir­er.

Dero­ga­tion for a longer, max­i­mum peri­od of up to 15 months is pos­si­ble if a col­lec­tive agree­ment on indus­try sur­charges applies to the employ­ment. In this case, grad­ual adjust­ment to the reg­u­lar employee’s remu­ner­a­tion is required after six weeks of employ­ment at the lat­est (sec. 8 (4) sen­tence 2 no. 1 and 2 AÜG).

Principle of equality

For the avoid­ance of doubt: The prin­ci­ple of equal­i­ty should not be mixed up with the prin­ci­ple of equal treat­ment. The prin­ci­ple of equal­i­ty is a spe­cial fea­ture that is only rel­e­vant for tem­po­rary employ­ment. The prin­ci­ple of equal­i­ty com­pares the work­ing con­di­tions of the tem­po­rary employ­ee with those of the customer’s reg­u­lar employ­ees. This means that every per­son in the com­par­i­son has a dif­fer­ent employ­er.

The prin­ci­ple of equal treat­ment, on the oth­er hand, applies through­out labour law and pro­vides that an employ­er may not dis­crim­i­nate against its own employ­ees with­out cause.