OGH: Covid Bonus for Temp Agency Workers

Sept 20, 2024 Benn-Ibler Rechtsanwälte

The EU’s Temporary Agency Work Directive came into force on 5 December 2008, establishing the principle of equal treatment between temporary agency workers and employees of user companies. According to Art. 5(1) of the Directive, the basic working conditions of temporary agency workers during their assignment at the user company must be at least those which would apply if they had been recruited directly by the user company for the same job.

In the case at hand, the plaintiff had been employed by the defendant as a simulator pilot from 2015 until the end of 2022, and was leased out to a company. The employment relationship of the employees of this company is governed by the Second Collective Bargaining Agreement for employees of Austro Control GmbH, which then provided for a EUR 3,000 one-off Covid bonus.

The plaintiff claimed payment of a pro-rata Covid bonus of EUR 277.50 on the basis of his part-time employment pursuant to Section 10 of the Austrian Temporary Employment Act (Arbeitnehmerüberlassungsgesetz, AÜG). The defendant argued that Section 10 of the AÜG only grants temporary workers a rough approximation of the agreed remuneration of comparable permanent employees for comparable work. However, there are no simulator pilots among the core staff members of Austro Control GmbH.

The trial court dismissed the action. The court of appeal upheld the claim, and this decision was confirmed by the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH).

The one-off Covid bonus is a collectively agreed minimum payment for all employees of the employing company (= core workforce) with a valid employment contract (regardless of the type of work performed).

The OGH had interpreted the remuneration provision of Section 10(1) AÜG as applying only to remuneration claims that fall due periodically, usually monthly, prior to the implementation of the Temporary Agency Work Directive. However, as this would violate the principle of equal treatment, an interpretation in line with the Directive prohibits a separate definition of ‘remuneration’ for temporary workers. The OGH was therefore of the opinion that the definition of remuneration in Section 10(1) of the AÜG must be interpreted comprehensively. Consequently, the plaintiff has a claim to a one-time bonus to which the core workforce of the temporary employment agency is entitled under the Austrian collective bargaining agreement.

OGH 9 ObA 18/24y (23 July 2024)