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Example case
Marisa has been working for a temporary employment agency for a year and a half. Like 60 other Portuguese people, she has worked in a logistics centre right from the start, where she is responsible for preparing the parcels for dispatch. She likes her job. The only thing she worries about is the payment. Even though she works full time according to her contract, she never knows how many hours she will be allocated in a month and therefore cannot plan her expenses. In some months she gets so little wages that she even has to borrow the rent from her family. Now there is also the fact that the employer presented Marisa and all workers who have been with Marisa for as long as her, a termination agreement to be signed. He has promised that he will hire her again after three months. Marisa does not know what to do. She has heard that if she terminates the employment contract herself, she will not receive unemployment benefits.
As far as her working hours and her wage are concerned, according to her employment contract, Marisa is obligated to be available for the employer 40 hours per week. The employer has committed to employ and pay Marisa for 40 hours a week. If he does not have a job for Marisa, Marisa is still entitled to the full wage even though she has not worked. This is the so-called guaranteed wage. If the employer does not pay Marisa for 40 hours but only for the hours she actually worked, he is violating his obligations under labour law.
In order for Marisa to receive her guaranteed wage, she has to claim it from the employer herself. No authority does that for her. However, she can turn to a union Advice centre for labour law, where she can get more information about wage claims.
Marisa can find the addresses of the local Advice centres online at:
Specific employment law Advice centres
https://www.arbeitundleben.de/arbeitsfelder/beratungsnetzwerk
https://www.faire-mobilitaet.de/en
Marisa can find an overview of all Advice centres according to subject focus as well as by language at:
https://www.eu-gleichbehandlungsstelle.de/eugs-en/eu-citizens/searching-for-an-advice-centre
How to claim wages from the employer is in Chapter 2 “Non-payment of wage”.
Marisa does not have to and should not sign the termination agreement for two reasons:
Individual workers like Marisa find it difficult to make claims against the employer on their own. Accordingly, many companies have a works council elected by the employees, which represents the interests of the entire workforce in the company. If there is no works council in the temporary employment agency, Marisa can also contact the works council of the hirer, i.e. the logistics company. The works council of the logistics centre is mainly responsible for Marisa for questions about the workplace, e.g. on occupational health and safety or on the distribution of working hours. The logistics centre also has a duty of care towards Marisa and other temporary workers. The works council of the logistics centre has no direct influence on the leasing company (the temporary employment agency) when, for example, it concerns paying out the guaranteed wage . However, with reference to the duty of care, it can influence its own employer to ensure that the temporary employment agency ensures the correct remuneration of temporary workers.
Most temporary work agencies in Germany are members of one of the two largest employers' associations in the industry: the Federal Employers’ Association of Personnel Service Providers. (BAP)or the Association of German Temporary Employment Companies (iGZ). The associations represent the interests of their members, negotiate the collective terms of employment in temporary work and are committed to fair working conditions, compliance with laws and occupational health and safety and ethical standards. These principles of action are set out in the code of conduct and ethics. Marisa can find out whether her employer belongs to one of the two associations. If this is the case, Marisa can contact the responsible association and describe her case there. The employers’ association can then mediate and reach an agreement and prevent the employer from further breaches of contract.
If the temporary employment agency is a member of the iGZ, Marisa can contact the Contact and arbitration board (KuSS) at:
kontakt@kuss-zeitarbeit.de or telephone: 030 25762847
No arbitration board has been set up at the BAP, but it is advisable to contact the association in writing in such cases:
Bundesarbeitgeberverband der Personaldienstleister e.V. (BAP)
Universitätsstraße 2-3a
10117 Berlin
The withholding of the guaranteed wage is a violation of § 615 of the German Civil Code (BGB) and the Act on Temporary Employment Businesses (AÜG) (§ 11, para. 4, clause 2). The attempt to prevent the company who receives the temporary worker from taking over Marisa and other workers violates the objective of § 1 para. 1b Temporary Employment Act (AÜG).
Marisa can report these violations to the employment agency, which has given the employer permission for the supply of temporary workers. There are three employment agencies in Germany that are responsible for issuing the Temporary Employment Act (AÜG) permit: in Nuremberg, Kiel and Düsseldorf. Which office is responsible depends on where the temporary employment agency’s head office is located:
| Agency | responsible for: | Contact |
|---|---|---|
| Employment Agency Nuremberg 90300 Nuremberg | Baden-Württemberg, Bayern, Rheinland-Pfalz, Saarland | Telephone: 0911 529-4343 Fax: 0911 529-4004343 Nuernberg.091-ANUE@arbeitsagentur.de Mon–Fri: 08:00–13:00 / and additionally Thu: 13:00–16:00 |
| Employment Agency Kiel 24131 Kiel | Berlin, Brandenburg, Bremen, Hamburg, Mecklenburg- Vorpommern, Niedersachsen, Sachsen, Sachsen-Anhalt, Schleswig-Holstein, Thüringen | Telephone: 0431 709-1010 Fax: 0431 709-1011 Kiel.091-ANUE@arbeitsagentur.de Mon–Fri: 08:00–13:00 / and additionally Thu: 13:00–16:00 |
| Employment Agency Düsseldorf 40180 Düsseldorf | Hessen, Nordrhein-Westfalen | Telephone: 0211 692-4500 Fax: 0211 692-4501 Duesseldorf.091-ANUE@arbeitsagentur.de Mon–Fri: 08:00–13:00 / and additionally Thu: 13:00–16:00 |
The responsible employment agency can check the employer based on Marisa’s complaint. If violations of the law are found, the temporary employment company must expect fines or it can even be prohibited from continuing to work as a temporary employment agency. It is important that Marisa describe the situation in detail in the letter of complaint and include evidence, e.g. the employment contract and pay slips.
Employment law Advice centres can help prepare such a complaint (see step 1). The chances of a punishment of the employer increase, if other victims also join the complaint. After submitting the complaint, Marisa usually does not receive any information about the result of the examination by the Employment Agency.
By withholding the guaranteed wage, on the one hand, the obligation to pay the minimum wage is violated and, on the other hand, the social security contributions are withheld. For this reason Marisa can also file a report with the Financial control of illegal employment, which can lead to the company being checked and punished for misconduct:
https://www.zoll.de/EN/Contact/Enquiries/General-enquiries/general-enquiries_node.html
If Marisa works for more than 18 months at the logistics centre, the employment contract between her and the temporary employment agency becomes ineffective. At this point, a permanent employment relationship is automatically created between Marisa and the logistics centre.
Caution! In the new employment relationship, certain time periods are reset to zero. For example, Marisa is only granted legal protection against dismissal at the logistics centre 6 months after the takeover. The working times in the logistics centre from previous employment with the temporary employment agency are not taken into account.