Contracts for work and services - indispensable for value creation and growth
Contracts for work and services are a customary and fair form of contract and a usual and proven element in business transactions. They are indispensable for ensuring the division of tasks and specialisation. All labour and collective bargaining law naturally also applies to employees working under contracts for work and services.
Concluding contracts for work and services is part of everyday entrepreneurial activity. They serve the division of tasks and specialization that are so important for Germany as a business location. In this way, they improve economic dynamics and increase productivity. Contracts for work and services are an indispensable part of production and service. They are characteristic of business relations between companies, irrespective of industry and economic sector. Contracts for work and services are also becoming increasingly important in integrated production.
Abuse already prohibited today
The misuse of contracts for work and services is already prohibited under current law. Customs and social security institutions are responsible for enforcing this prohibition. The employer is liable for social security contributions. Under the current legal situation, the works council already has the possibility of objecting to the use of a covert employee leasing arrangement, i.e. a so-called bogus contract for work and services. For this reason, a legal ban for an industry, as is currently being discussed in the meat industry, should also be rejected.
Labour and collective bargaining law applies to the use of contracts for work and services
If employees work for their employers within the framework of contracts for work and services, the entire labour, social insurance and collective bargaining law applies. This also includes the regulations of the Dismissal Protection Act, the Works Constitution Act or also the fixed-term contract law. If the employer is a member of a collective bargaining association or concludes collective agreements itself, these collective agreements apply.
Employment contract regulated in § 611a BGB
With the 2017 amendment to the AÜG, the employment contract was defined in Section 611a BGB. This does not change the legal situation in the area of contracts for work and services. The wording exclusively reflects the definition as used by the Federal Labour Court in its consistent case law.
Jurisprudence has succeeded in shaping demarcation criteria between temporary employment on the one hand and contracts for work and services on the other. This allows for an individual consideration of each case. The statutory regulation of such demarcation criteria leads to a devaluation of such criteria and would make individual case decisions almost impossible. The case law leads to appropriate results, so that there is no need for further statutory criteria.