Dissertation: Das Festhaltensrecht im neuen AÜG

Das Festhaltensrecht im neuen AÜG

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Schriftenreihe arbeitsrechtliche Forschungsergebnisse, volume 275

Hamburg , 262 pages

ISBN 978-3-339-12850-8 (print) |ISBN 978-3-339-12851-5 (eBook)

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This paper deals with the so-called "declaration of adherence" in the Temporary Employment Act (AÜG). This newly introduced legal instrument is intended to protect the temporary worker's freedom of self-determination – comparable to the right of objection in the case of transfer of an undertaking, section 613a (6) BGB.

The AÜG provides in sections 9 and 10 for a unique regulatory mechanism: In the event that a worker is hired out by a company that does not have the required license, the worker's employment relationship with the lender automatically becomes invalid and a new employment relationship with the hirer is formed instead (by operation of law).

The federal labour court did point out in several decisions that it is constitutionally questionable to assign an employee to another employer by law against his or her will. Nevertheless, the legislator recently extended this controversial regulatory mechanism, so that the same legal consequences now also occur if the parties do not disclose the legal nature of the employee leasing or if the employee is leased for longer than the (newly implemented) maximum leasing period. However, in order to address the critical voices, the legislator has now granted the employee the right to declare that he/she wishes to adhere the employment relationship with the lender. However, the legislator has created the right of adherence so bureaucratic and restrictive that it is almost impossible for the employee to exercise his or her right appropriately.

In this paper, the author discusses the situations in which the employee has reason to adhere to his former employment relationship with the lender and describes the obstacles that often prevent the employee form exercising his/her right. The author then examines whether the right of adherence is a constitutionally required necessity to protect the employee's freedom of choice of occupation. Further the author scrutinizes whether the deficits can be remedied by interpreting the legal statute in conformity with the constitution, or whether a change in the law is necessary. The paper concludes with a proposal to the legislator.

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