Supreme Court Clarification: Temporary workers are part of the employer’s workforce from the day they start work

Published 19/02/2021

Should leased workers be counted when determining the number of works council members in a works council election in the employing company? This question has been highly controversial until now. In particular, it was unclear whether a minimum period of temporary employment at the employing company was required for temporary workers to qualify as employees within the meaning of Section 36 of the Labour Relations Act (ArbVG). 

The Supreme Court (9 ObA 65/20d) recently clarified that temporary workers (also) count as employees of the employing company from the day they start work. If they are working in the employing company on the reference date (= the day of the works council meeting to elect the committee), they count towards the determination of the number of works council members. However, the question of whether leased workers are also actively entitled to vote from the first day of work was expressly excluded.

That the number of temporary workers naturally fluctuates in contrast to the permanent workforce is, in the opinion of the Supreme Court, legally irrelevant 
due to the key date regulation and the legal provision in Section 50(2) of the ArbVG. The ruling states that any subsequent change in the number of employees has no bearing on the number of works council members.

Please be aware, then, that the employment of leased workers on the cut-off date for the works council election may influence the number of works council members in your company. In borderline cases, companies may consider suspending worker leasing or increasing or reducing the number of leased workers only after the elections. Appropriate provisions should be made in the supply agreement.