ECJ: Can Temp Workers Be Paid Less?

Jan 3, 2023 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) has ruled that temporary agency workers can only be paid less than permanent employees if any such unequal treatment is compensated for by means of a collective agreement. This is intended to ensure the overall protection of temporary agency workers.

Under the German Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, hereinafter AÜG), temporary agency workers are entitled to the same pay as permanent employees of the respective company. Deviating from this equal pay principle is only permissible via a collective agreement under Section 8 (2) AÜG. In the case at hand, the German Federal Labour Court (Bundesarbeitsgericht, BAG) had referred this question to the ECJ for a preliminary ruling, as a temporary worker had brought an action before a German labour court, claiming that the permanent workers in the company where she was employed had received a higher hourly wage than she had. This was legal, though, since the temporary employment agency had paid its employees according to the collective agreement. The ECJ now had to decide the following: When may a collective agreement for temporary workers deviate from the principle of equal treatment?

The ECJ has now ruled that the principle of equal treatment may deviate from collective agreements for temporary agency workers with regard to pay. However, other benefits must then be granted.

The collective agreement must provide for appropriate benefits with regard to essential working and employment conditions for temporary agency workers in compensation for their lower pay. The overall protection of temporary agency workers as granted by the EU Temporary Agency Work Directive must be ensured.

ECJ, C‑311/21 (15.12.2022)