Federal Labor Court: Special labor law provisions apply in German seaports

The Federal Labor Court (BAG) in Erfurt has confirmed the sometimes special labor law in the ports.

The Temporary Employment Act does not apply to so-called entire port operations, as the BAG decided in a judgment on the port of Bremen published on Friday.

As a special law, the General Port Operations Act takes precedence.

Otherwise, its goal of permanent jobs in the ports would be undermined.

According to the General Port Operations Act, employers and trade unions can form a “special employer” through an agreement.

This “entire port company” takes on the role of employer, especially for smaller port companies, and assigns the workers to the companies.

This is intended to secure permanent employment for the workers despite the strongly fluctuating order situation of the individual companies.

The first overall port operation was established in Hamburg around 1900.

The Temporary Employment Act (AÜG) contains various provisions to protect temporary workers.

Hiring companies need permission from the Federal Employment Agency.

In addition, the duration of the rental in a company is usually limited to 18 months.

If the permit is missing or if this period has been exceeded, a permanent employment relationship arises directly with the hiring company.

Special situation at ports

Port workers from Bremen who had been assigned to a single port operation by the overall port operation for more than 18 months had complained.

They said that the entire port operation was hiring out employees, but had no permission for this.

In addition, the maximum duration has been exceeded.

According to the AÜG, a permanent employment relationship with the port company was created.

But the complaints remained unsuccessful through all instances.

The AÜG does not apply to the hiring out of workers by the entire port operation.

The reservation of permission and the other regulations of the AÜG therefore do not apply to the entire port operation.

In justification, the BAG explained that, like the AÜG, the General Port Operations Act is also a federal law and therefore has equal priority in principle.

As a special law tailored to the situation in the ports, it takes precedence over the AÜG.

It is true that the purpose of hiring out employees in the ports essentially corresponds to that of temporary work.

However, the legislature deliberately regulated this separately for the ports.

The aim of these regulations, to create permanent jobs in the ports instead of working as "day labourers", would be undermined by the transfer of employment relationships to individual companies (Az: 9 AZR 476/21 and others)