23. Dec 16

LAG Hamm on employing workers from subsidiary firm at weekends

It is not necessary for an employer to obtain the consent of the works council in order to employ workers from a subsidiary company at weekends for the purposes of performing specific work. That was the verdict of the Landesarbeitsgericht (LAG) Hamm [Higher Regional Court of Hamm] (13 TaBVGa 8/16).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The Landesarbeitsgericht’s ruling concerned a simmering labour dispute at an automotive supplier in dire economic straits. Negotiations between the employer and employee representatives relating to staff reductions and redundancy packages had recently fallen apart. One consequence of this is that arrangements regarding overtime work at the weekends had expired.

These arrangements were not extended by the works council. The employer reacted by having workers from a subsidiary company in another EU country flown in to work overtime at the weekends and presented a contract for the performance of specific work with a term beginning at the start of October and expiring at the end of the year. A request brought by the works council to grant an interim injunction against this measure was unsuccessful. Both the Arbeitsgericht Iserlohn (Labour Court of Iserlohn) and the LAG Hamm dismissed the claim for an interim injunction.

The 13th Chamber of the LAG Hamm took the view that the works council did not enjoy any participation rights in relation to the employment of the workers from the subsidiary company. The Court also held that its consent was not required, because the employer’s decision to employ the workers from the subsidiary company at the weekends for the purposes of performing specific work meant the establishment of a new business with different employees, with respect to which the works council had no jurisdiction and whose employment of the workers in question did not constitute a change in business operations. It went on to say it could not be concluded that the workers from the subsidiary firm ought to be integrated into the business of the parent company. By concluding contracts for specific work, the employer was said to have acted legally within the framework of entrepreneurial freedom.

Lawyers who are versed in the field of collective labour law can offer advice when legal disputes arise between employers and those representing the workers on all matters pertaining to collective agreements, worker participation, labour disputes as well as in relation to other issues, and assist in promoting their clients’ respective interests.

For more informations: https://www.grprainer.com/en/legal-advice/employment-law.html

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