AKMV Temporary employment agency abroad
QUESTION
We would like to request more information regarding the operation of a temporary employment agency (AÜG) in Germany. Our company specializes in the implementation of assembly and installation projects abroad, primarily in Germany, and several clients have recently approached us with interest in cooperating through an AÜG framework. However, we do not have sufficient knowledge in this area, and we would appreciate clarification on several points.
For example, we are unsure whether, under an AÜG license, we are allowed to engage subcontractors (self-employed tradespeople/freelancers), or whether we may only employ regular employees who would be assigned to projects in Germany.
Additionally, we are unclear on how worker compensation is structured. Typically, we receive contracts for work (Werkverträge) from German clients at an average rate of €35/hour. Those interested in cooperation exclusively through AÜG also offer rates around €35/hour. Therefore, we would like to understand whether such cooperation would be financially viable for our company and attractive for our workers. We would be grateful for your guidance and answers to the above questions.
ANSWER:
Regarding your first question, we would like to clarify that a temporary employment agency is a legal entity or natural person that employs a citizen under an employment contract (hereinafter referred to as a “temporary agency worker”) for the purpose of temporarily assigning them to a user employer within the territory of the Slovak Republic to perform work under their supervision and management, or for the purpose of posting them abroad under a special regulation.
From this definition, it follows that through a temporary employment agency, you can send your employees (employed under an employment contract, not based on agreements on work performed outside employment such as agreements to perform work or agreements on work activity) on temporary cross-border assignments abroad. A temporary employment agency cannot temporarily assign self-employed persons (freelancers) with whom it cooperates under a commercial contract.
There have been several changes in the legal regulation of posting workers (based on Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services), effective from 30 July 2020, which also affect the remuneration of temporary agency workers. Therefore, regarding the working conditions of temporary agency workers, including their remuneration, we recommend consulting a lawyer in Germany who can advise you on the minimum standards (wages and other legal entitlements) that must be respected according to German legislation on agency work. After that, you can evaluate the advantages of using this model.
JUDr. Veronika Michalíková, MBA