OGH makes it clear: Temporary workers are part of the workforce


A minimum period of lease is not required. The decision primarily affects the works council election

OGH makes it clear: Temporary workers are part of the workforce

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They work fully in the company, but somehow they are not part of it: Many temporary workers still feel like second-class employees compared to the regular workforce. According to the EU Temporary Agency Work Directive of 2013, which was implemented in Austria in the Temporary Workers Act (AÜG), this should not be the case. It clearly stipulates that temporary workers are to be counted as part of the permanent workforce under the works constitution and are therefore allowed to use social facilities such as canteen or company kindergarten. They must also be included in the election of the works council.

However, it was unclear from when this equality would apply. From the first day, i.e. without a minimum duration of employment, the Supreme Court (OGH) now ruled in a much-noticed decision. If a new works council is elected, all leased workers count towards the workforce, regardless of how long the leasing has already lasted or should last. If more temporary workers are employed, this means a larger works council.

More works councils

“The question was relevant because it depends in particular from when exactly the number of works council members to be elected and when the works council elections are to be taken into account, or also from when works agreements in the employer's company apply to them,” explains Walter Pöschl, labor law expert at Taylor Wessing.

The number of works councils to be elected depends on the number of employees in the company on the reference date. If the number is 45, for example, 3 works council members are to be elected, if 55, there are 4.

Thomas Grammelhofer from the Pro-Ge union welcomes the decision of the Supreme Court and sees it as a strengthening of the co-determination rights of temporary workers in the company. In the past, many decisions were employer-friendly. Now it is important that the clarification is also implemented in the companies.

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