Maximum lease period

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The maximum leasing period is a regulation under the Temporary Employment Act (AÜG). It specifies the maximum permissible duration for which a temporary worker may be made available to a hiring company for work.

Legal basis

The legal basis for the maximum leasing period is the Temporary Employment Act . This was reformed on April 1, 2017. Since the AÜG reform came into force in April 2017, there has been a maximum leasing period of 18 months ( Section 1 (1b) sentence 1 AÜG).

history

One criterion for temporary employment is that it takes place temporarily. In the course of various reforms of the AÜG, the period for the maximum permissible leasing period was adjusted several times:

  • 1972: maximum lease period of 3 months
  • 1985: Extension of the maximum rental period from 3 to 6 months
  • 1994: Extension from 6 to 9 months
  • 1997: Extension from 9 to 12 months
  • 2002: Extension from 12 to 24 months
  • 2003: Elimination of the maximum leasing period in the course of the Hartz laws
  • 2011: In the course of the Temporary Agency Work Directive ( Directive 2008/104 / EC ) it is stipulated that the leasing must be "temporary"
  • 2017: maximum leasing period of 18 months

Determination of the maximum lease period

18-month rule

The criterion of the temporary hiring out of temporary workers is specified in the AÜG reform of April 1, 2017: Hirers may not let temporary workers go to the same hirer for more than 18 consecutive months ( Section 1 (1b) AÜG).

The calculation of the leasing period is based on the technical instructions of the Federal Employment Agency in accordance with Section 187, Paragraph 2, Clause 1, Section 188, Paragraph 2, 2nd alternative. BGB: "If the beginning of a day is the decisive time for the beginning of a period, this day is included in the calculation of the period." The decisive factor for determining the leasing period is not the actual working time, but the duration of the leasing specified in the temporary employment contract: For example, if the temporary worker works two days a week in the rental company for six months, the period should be counted towards six months. A partial crediting of working hours is not possible. Lease periods from April 1, 2017 ( Section 19 (2) AÜG) are taken into account .

Alternatively, contrary to the BA technical instructions, the deadlines can be calculated according to § 191 BGB: The month is calculated as 30 and the year as 365 days.

The calculation of the permissible leasing period is based on the employee-specific instructions of the Federal Employment Agency: Previous employment times of the temporary worker in the same rental company will be taken into account, even if the previous assignment was carried out by another rental company. If the transfer was interrupted for more than three months, the calculation starts again from zero. In the case of interruptions of exactly three months or less than three months, the leasing periods are added. For the calculation of partial months in the case of previous assignments, the month is set at 30 days according to the technical instructions of the Federal Employment Agency ( § 191 BGB).

Deviations

Under certain circumstances, deviations from the 18-month rule are possible (extension or reduction).

Borrowers subject to collective bargaining agreements

Companies subject to collective bargaining agreements can apply a different maximum leasing period if the parties to the collective bargaining agreement in the deployment sector have made a corresponding regulation ( Section 1 (1b) AÜG, sentence 3). The precondition is that the borrower is bound by collective bargaining agreements: the deviation occurs through an association or branch collective agreement or a company collective agreement.

Borrowers not bound by collective agreements

Borrowers not bound by collective bargaining agreements within the scope of the collective bargaining agreement have the option of adopting different collective bargaining regulations on the maximum leasing period with the same content through company / service agreements ( Section 1 (1b) sentence 4 AÜG). When taking over, all regulations that are related to the deviation from the maximum lease term must be taken into account, e.g. B. linked regulations on the leasing period and taking on temporary workers. If the borrower falls under several relevant collective agreements, the most representative collective agreement must be used according to Section 1 (1b) sentence 7 AÜG. The precondition for the possibility of deviation is that the borrower has a works council. If there is a corresponding opening clause in the collective bargaining agreement, borrowers who are not bound by collective bargaining agreements can make use of this ( Section 1 (1b) sentence 6 AÜG) in order to make deviating regulations in a company / service agreement. If there is no specification for the maximum lease period, the lease period for borrowers who are not subject to collective agreements is limited to a maximum of 24 months.

Legal consequences if the maximum lease period is exceeded

The employment contract between the lender and the temporary worker becomes ineffective when the maximum permissible lease period is exceeded ( Section 9 (1b) AÜG), unless the temporary worker adheres to the employment contract with the lender by means of a declaration of adherence: The declaration has to be made within one month after the maximum lease period has been exceeded to be made in writing. This is effective according to § 9 para. 2 if

  • the temporary worker presents them personally to the employment agency
  • the employment agency provides the declaration with the date of submission and confirms with a note that it has established the identity of the temporary worker
  • the declaration is received by the lender or borrower no later than the third day after submission to the employment agency

Software-supported implementation

The calculation of the deadlines for the maximum lease period can be carried out using software. To do this, users transfer the relevant customer, employee and order data into their software solution. The software determines when the maximum leasing period has been reached. Employees' pre-employment times at a hirer and any deviating deadlines must be taken into account.

Individual evidence

  1. ↑ Martin Henssler, Timon Grau (Hrsg.): Temporary employees and work contracts: new legal regulation and effects for practice. 1st edition. Deutscher Anwaltverlag & Institut der Anwaltschaft, 2017, p. 200
  2. ↑ IAB short report 13/2014 , p. 2, accessed on May 16, 2018
  3. ^ First law for modern services on the labor market of December 23, 2002, BGB1 I 2002, 4618, accessed on May 16, 2018
  4. ↑ First law to amend the Temporary Employment Act - Prevention of abuse of temporary employment v. April 28, 2011, BGB1 I 2011, 642, accessed on May 16, 2018
  5. ↑ Technical instructions for the Employee Leasing Act , August 1, 2019, Section 1.2.1 No. 1, p. 23, uploaded on September 19, 2019
  6. ↑ Technical instructions for the Employee Leasing Act , August 1, 2019, paragraph 1.2.1 No. 3 p. 24, uploaded on September 19, 2019
  7. ↑ Martin Henssler, Timon Grau (Hrsg.): Temporary employees and work contracts: new legal regulation and effects for practice. 1st edition. Deutscher Anwaltverlag & Institut der Anwaltschaft, 2017, p. 212
  8. ↑ Martin Henssler, Timon Grau (Hrsg.): Temporary employees and work contracts: new legal regulation and effects for practice. 1st edition. Deutscher Anwaltverlag & Institut der Anwaltschaft, 2017, p. 217
  9. ↑ Martin Henssler, Timon Grau (Hrsg.): Temporary employees and work contracts: new legal regulation and effects for practice. 1st edition. Deutscher Anwaltverlag & Institut der Anwaltschaft, 2017, p. 222ff
  10. ↑ AÜOffice® branch software , accessed on May 16, 2018

literature

  • Martin Henssler, Timon Grau (Hrsg.): Temporary employees and contracts for work and services: New legal regulation and implications for practice. 1st edition. Deutscher Anwaltverlag & Institut der Anwaltschaft, 2017, ISBN 978-3-8240-1504-7 , pp. 200–233.
  • First law for modern services on the labor market of 23. December 2002, BGB1 I 2002, 4618.
  • First law to amend the Temporary Employment Act - Prevention of abuse of temporary employment v. April 28, 2011, BGB1 I 2011, 642.

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