Equal pay for temporary workers: the legal details

We often read about equal opportunities or equal pay in connection with temporary employment relationships. But what exactly does this mean? What legal rights does this give temporary workers? When does the entitlement to equal pay apply?

Section 8 (1) of the German Temporary Employment Act (AÜG) enshrines the so-called principle of equal treatment: "The hirer is obliged to grant the temporary worker the essential working conditions, including pay, applicable to a comparable employee of the hirer in the hirer's company for the duration of the assignment to the hirer."

In other words: Temporary workers are entitled to equal treatment with comparable permanent employees of the company in which they are employed with regard to the essential working conditions. Part of this is the right to equal pay.

Deviation possible by collective agreement

If no collective agreement applies to the temporary employment relationship, the temporary worker is entitled to be remunerated in the same way as comparable permanent employees from the first day with the hirer.

However, Section 8 (2) AÜG expressly permits a deviation from the principle of equal treatment by collective agreement. This means that collective agreements may provide for less favourable working conditions for temporary workers compared to the permanent workforce at the hirer, although certain statutory minimum standards must be observed. For example, the collectively agreed remuneration may not be below the statutory minimum wage, nor may it fall below the statutory minimum holiday entitlement of 20 days (for a 5-day week).

Entitlement to equal pay

Section 8 (4) AÜG ensures that temporary workers who are (initially) paid less due to a collective labour agreement are entitled to a temporary employment contract after a certain period of employment. Employee leasing a claim to equal pay. According to this, temporary workers must receive the same remuneration as comparable permanent employees at the company of assignment after nine months of uninterrupted employment. A short-term interruption of the assignment of up to three months is considered irrelevant. Only after an interruption of more than three months does the nine-month period start again from the beginning.

The legislator only permits a deviation by collective agreement lasting longer than nine months if, by means of industry surcharges - after a familiarisation period of no more than six weeks - a gradual adjustment to the wages of the permanent workforce takes place and equivalent remuneration is achieved after 15 months at the latest.

What counts as "remuneration"?

When it comes to the right to equal pay, the question also arises as to how the comparable remuneration is to be determined in the first place. Which remuneration components are included? The AÜG does not define the term "remuneration" in more detail.

However, in its case law, the Federal Labour Court has provided specific guidelines that can be used as a guide. Accordingly, the equal pay claim relates not only to the monthly basic salary, but also to other remuneration components such as bonuses for overtime and Sunday, public holiday and night work. Special payments such as holiday and Christmas bonuses as well as performance bonuses must also be taken into account. Remuneration also includes meal allowances, capital-forming benefits and benefits in kind granted by the employer to its employees.

Judgement: Principle of equal treatment does not protect permanent staff

The principle of equal treatment is therefore intended to protect temporary workers from being placed in a less favourable position than a comparable permanent employee of the hirer. But what is the legal situation if the temporary workers are paid more than the permanent staff? Can a permanent employee then also invoke equal pay and demand a pay rise from their employer?

No, decided the Mecklenburg-Western Pomerania Regional Labour Court (judgement of 09.01.2024, Ref. 5 Sa 37/23). Accordingly, the permanent staff are not entitled to equal pay compared to the temporary workers. The statutory provision in Section 8 (1) AÜG protects the temporary workers, but not the permanent staff at the company of assignment.

Furthermore, the court ruled that an employee does not become a temporary worker because his direct superiors and the majority of his work colleagues in the company are employed as temporary workers from a company belonging to the group. The plaintiff argued that the company was not managed by her contractual employer, but by the company providing the temporary workers. From this, she deduced that she herself was a temporary worker and demanded information on the essential working conditions applicable to comparable employees in accordance with Section 13 AÜG in order to be able to assert her claim for equal treatment. However, the court did not follow the plaintiff's argument and did not grant her the status of a temporary worker.

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