Who is affected by the Federal Labor Court’s decisions? Who benefits?
Martin Bauer: All temporary agency workers who are assigned to client companies covered by our collective bargaining agreements on industry-specific bonuses and who have been denied these bonuses until now. Even though the Federal Labor Court’s (BAG) decisions directly applied only to the collective bargaining agreement for industry-specific surcharges in the metal and electrical industries, key aspects can also be applied to our collective bargaining agreements on industry-specific surcharges in the wood and plastics industries as well as the textile and apparel industries.
On what grounds did the staffing agencies refuse to pay the surcharges?
In the cases decided by the BAG, the staffing agencies argued that the client companies, as “service providers,” could not be classified as belonging to an economic sector covered by the collective bargaining agreement. Furthermore, they argued that these companies were not support operations for a business in a relevant economic sector. Therefore, the staffing agencies argued, the scope of application of the collective bargaining agreement did not apply at all. However, the Federal Labor Court (BAG) clarified that even a company that performs only partial steps in the production process can still be classified within the relevant economic sector. This means that service providers for metalworking companies can also be considered part of the metal industry. Consequently, the sectoral surcharges under the collective bargaining agreement for temporary workers in the metal industry also apply in such cases. Furthermore, the BAG emphasized that, for the purposes of the collective bargaining agreement, a support company is not required to have the same owner as the manufacturing company. It is sufficient that the user company’s business activities are exclusively or predominantly directed toward supporting the manufacturing company.
What do I need to do to receive industry-specific surcharges under the collective bargaining agreement? How do I proceed?
Temporary workers who do not receive the supplements to which they are entitled must claim them in writing from their employer—that is, the staffing agency. Anyone who still does not receive their money after doing so has no choice but to go to labor court. We support our members in this process. Please contact your local office. Even plaintiffs who won their cases at the BAG in February conducted these proceedings with our legal protection without any risk of costs.
Can I also claim the industry-specific surcharges retroactively?
Industry surcharges can also be claimed for past periods; however, limitation periods generally set time limits on this. The collective bargaining agreements concluded by the major employers’ associations in the temporary staffing industry stipulate that claims must be asserted in writing no later than three months after the payment is due. If the employer refuses to pay, the claim must be filed in court within a further period of three months from receipt of the written refusal. If these deadlines are not met, claims are barred. However, a different rule applies if the staffing agency had declared, with regard to the proceedings described above, that it would waive the statute of limitations.
How much money will I receive then?
The collective bargaining agreement for industry-specific surcharges in the metal and electrical industries stipulates that, after six weeks at the client company, a 15 percent surcharge must be paid on top of the base pay. Depending on the duration of the assignment, the surcharges increase to 50 percent after nine months have elapsed. In the future, there will also be an additional tier of 65 percent after 15 months. The collective bargaining agreements for industry-specific bonuses in the wood and plastics industry and the textile and apparel industry, respectively, provide for different tiers.
At what point will I receive the same pay as permanent employees? Or even more?
There is no one-size-fits-all answer to this. The supplements are calculated solely on the basis of the temporary workers’ collectively agreed wages. It should also be noted that the benchmark for comparison is the hiring company’s employees, not those of the manufacturing facility. If the collective bargaining agreements for the metal and electrical industries do not apply to the client company, temporary workers may reach the pay level of a permanent employee after only a short time. The collective bargaining agreements include a cap that limits the pay of temporary workers to the earnings of permanent employees at the company. However, if the user company does not invoke the cap on temporary workers’ premium pay, temporary workers may earn more than comparable permanent employees. After 15 months of assignment at the same company at the latest, temporary workers must receive at least the same pay as comparable permanent employees. This new provision in the collective bargaining agreement regarding the industry-specific premium, however, does not take effect until January 1, 2018.
