In its recently published ruling (BAG, 31 May 2023, 5 AZR 143/19), the federal labour court (BAG) addresses the question of the extent to which an unfavourable deviation from the equal pay principle (Sec. 8 Para. 1 Act on Temporary Agency Work (“AÜG”)) is permissible based on a collective agreement (Sec. 8 Para. 2 Sentence 2 AÜG in conjunction with Sec. 10 Para. 4 Sentence 1 AÜG old version).
Plaintiff received up to four euros less
The plaintiff was employed by the defendant as a temporary employee from January to April 2017 and received EUR 9.23 per hour. Comparable permanent employees, on the other hand, received remuneration of EUR 13.64 per hour. The plaintiff initially unsuccessfully claimed the difference in pay before the Labour Court Würzburg and the Higher Labour Court. In her opinion, the applicable collective agreement concluded between the trade union ver.di and employers’ association iGZ was not compatible with Article 5 Para. 3 of Directive 2008/104/EC. The Federal Labour Court (“BAG”), which was entrusted with the legal dispute in the context of the appeal, then suspended the proceedings and submitted the case to the ECJ in a preliminary ruling procedure in order to ensure an interpretation of Sec. 8 Para. 2 Sentence 2 AÜG in conjunction with Sec. 10 Para. 4 Sentence 1 AÜG within the meaning of Article 5 Para. 3 of Directive 2008/104/EC.
In principle, the above mentioned directive obliges temporary work agencies to pay temporary workers the same as...
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