Temporary agency work: No blanket ban on using temps during industrial action

Under section 11(5) of the German Temporary Workers Act (Arbeitnehmerüberlassungsgesetz – AÜG) a user company is not permitted to use temporary agency workers if its plant is directly affected by industrial action, unless it ensures the temps do not take on any tasks normally done by striking employees. Recently, Cologne Labour Court (judgement of 13 December 2024 - 19 Ga 86/24) had to clarify whether trade unions could enforce this fundamental ban via injunctive relief.

Background

The defendant, which is not bound by any collective agreements, normally employs some 670 to 690 employees and a further 139 to 281 temporary employees. The claimant seeking the injunction, a trade union, applied for interim relief in the form of immediate forbearance from the use of temporary agency workers for the period of the ongoing industrial action. As grounds, it submitted that the matter was urgent: a strike is only effective if it puts direct pressure on the employer, it said. The use of temporary agency workers can greatly reduce that pressure and thus the strike misses its mark, it added.

Labour Court agrees with prevailing opinion in the legal literature

In the opinion of Cologne Labour Court, in principle the trade union had a claim to forbearance from deploying temporary agency workers during ongoing or planned industrial action. The Court agreed with the prevailing opinion in the literature. As there is no supreme court case law on trade unions’ claims to forbearance in such cases, the ruling by Cologne Labour Court creates a precedent.

Action is nevertheless inadmissible

However, despite upholding the claimant’s claims in principle, the Court dismissed the action as inadmissible. The employer had sent home the temporary agency workers in question before the trial and promised not to deploy them during the rest of the industrial action either. Therefore, said Cologne Labour Court, there was no longer any need for legal protection as the employer had comprehensively acquiesced to the trade union’s application by its actions.

Practical implications

An opinion by the courts on the prevailing view in the legal literature is very welcome as it creates more legal certainty. What is important for employers is to find out the boundaries of the ban on using temporary agency workers during industrial action. By strategically designing the company structure, in certain circumstances an employer can avoid the ban applying at all. According to the second sentence of section 11(5) of the German Temporary Workers Act, the ban does not apply if a temporary agency worker performs tasks not done by a regular employee of the plant on strike. The Act does not include a blanket ban on the use of temporary agency workers during industrial action.

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Further resources on hiring contractors

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Authors: Daniel Happ and Pasquale Bender