Supervisory board – agency workers are counted

Germany: When setting the composition of a company supervisory board, agency workers must be taken into account.

Under German law, employees must send representatives to the supervisory board if a company has a certain number of employees. If the number of regular employees is more than 500, then one-third of the supervisory board must consist of employees’ representatives. If the company has more than 2 000 employees, then half of the supervisory board must be employees’ representatives.

The Federal Labour Court has now decided that agency workers that are working for a company must also be taken into account – independently of the duration of their engagement. According to the judges, the threshold values under the relevant laws (Drittelbeteiligungsgesetz and Mitbestimmungsgesetz) only refer to the economic capacity of the company. In this context it does not make any difference whether the personnel requirements of the company are covered by internal or external (agency) workers.

Until now, agency workers who had been working in a company for more than three months were allowed to vote in works committee elections; but their number was not decisive when determining the number of works councils.

Companies with app. 500 employees should now check in detail whether they exceed this threshold when taking into account agency workers employed in the company; if so, they need to take measures accordingly to staff the works committee correctly.

BAG, 04.11.2015, AZ: ABR 42/13

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