After the Federal Labour Court had established by decision dated
14 October 2010 (docket no. 1 ABR 19/10) that the Collective
Bargaining Association of Christian Unions for Temporary Work and
Personnel Services Agencies [Tarifgemeinschaft Christlicher
Gewerkschaften für Zeitarbeit und Personalserviceagenturen,
CGZP] lacked bargaining capacity since the amendment of its
by-laws on 9 October 2009, the Regional Labour Court of
Berlin-Brandenburg (docket no. 24 TaBV 1285/12) established on 9
January 2012 that the CGZP had also lacked collective bargaining
capacity in the past on the dates of the respective amendments of
its by-laws on 29 November 2004, 19 June 2006 and on 9 July 2008
and was not in a position to conclude collective bargaining
agreements at such times. Hence, it is now established that the
CGZP has lacked collective bargaining capacity virtually completely
since its creation.
The established lack of bargaining capacity of the CGZP has
considerable consequences not only for the manpower suppliers using
the collective agreements, but also for the hiring firms.
The German Statutory Pension Insurance Scheme [Deutsche
Rentenversicherung Bund] is currently conducting social
insurance audits at almost all manpower suppliers which applied the
collective agreements of the CGZP either because they were
originally bound by the collective agreements or simply through
individual contractual references. The audit periods extend as far
back as 1 January 2005. On the basis of fictitious equal-pay claims
of the temporary agency workers (Sec. 11 para. 4 sentence 4 German
Temporary Employment Act [Arbeitnehmerüberlassungsgesetz,
AÜG] payment differences are now being calculated and the
resulting additionally payable social insurance contributions
assessed. The entire course of action taken by the Deutsche
Rentenversicherung Bund is a matter of considerable controversy
since its audits also and above all concern periods for which
legally binding assessment notices have already been issued. Since
manpower suppliers are increasingly becoming illiquid, manpower
hirers must be aware of the statutory legal consequences of Sec.
28e para. 2 German Social Code Book IV [Sozialgesetzbuch IV,
SGB IV]. According hereto, irrespective of a contractual
regulation between the supplying and hiring enterprise, the hiring
enterprise also bears a statutory liability for social insurance
contributions of the temporary agency workers employed at its
firm.
We assume that it will first take a decision of the Federal Social
Court [Bundessozialgericht, BSG] to clarify the question
of the permissibility of the Deutsche Rentenversicherung Bund's
audit and the retraction of legally binding assessment notices for
past periods in connection herewith as well as the unquestionably
decisive question of the protection of the reliance of users of the
CGZP collective agreements upon existing law. Until such time, both
supplying and hiring enterprises should not just simply accept the
assessment notices of the Deutsche Rentenversicherung Bund.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
