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1.1 These conditions shall apply to all current and future business relationships between Dremo Personaldienstleistung GmbH, hereinafter referred to as RECRUITMENT AGENCY (Hiring-Out Company), abbreviated as RA, and the PRINCIPAL (Hirer), abbreviated as P, to the exclusion of any other terms and conditions to the contrary.
1.2 Due to the reference made by individual contracts of the collective agreement concluded between the Deutsche Gewerkschaftsbund [Federation of German Trade Unions] and the Interessenverband Deutscher Zeitarbeitsunternehmen (iGZ e.V.) [German Association of Temporary Employment Agencies], it shall be deviated from the principle of EQUAL TREATMENT according to the law (see Section 3 Para. 1 No. 3 and Section 9 No. 2 AÜG). Thus, the P’s basic obligation to document shall not apply with regard to the essential working conditions, including the remuneration of their comparable permanent employees (see Section 12 Para. 1 Sentence 3 AÜG).
1.3 The P shall confirm to the RA that the employees named were not employed as employees neither within the P’s company nor within a company legally related to the P according to Section 18 Aktiengesetz (AktG) [Stock Corporation Act] within the six months prior to the beginning of their assignment.
1.4 If it is determined that an employment relationship had actually existed between the P and/or a company legally related to the P according to Section 18 AktG and an employee within the above six-month period, the P shall be obliged to promptly inform the RA. In such a case, the P shall make available in writing any relevant information in terms of the essential working conditions, including the remuneration of comparable permanent employees. Section 9 No. 2 and Section 12 No 1 Sentence 3 AÜG shall be the indispensable legal basis for the disclosure of this information.
1.5 On the basis of this written documentation, the respective hourly rate shall be adjusted appropriately according to Item 5 of the T&Cs.
1.6 Items 1.4 and 1.5 of the T&Cs shall apply accordingly, if and insofar as the obligation to EQUAL TREATMENT arises, either entirely or in part, from other standards than the AÜG, which are binding upon the RA.
1.7 The employees may only perform the activities specified in the underlying temporary worker contract which correspond to their job profile, knowledge and ability. They may only be provided by the P with, use and operate such devices, machines and tools, which are required and admitted for the performance of the activities agreed upon.
1.8 The P shall allocate to the employees only project assignments within Germany. Every assignment abroad shall require the explicit consent of the RA and a separate written agreement.
1.9 The P shall furnish any official and other approvals and consents possibly required at the place of assignment prior to the beginning of the work.
1.10 The P shall ensure that the restrictions on hiring-out into the construction industry are observed according to Section 1 b AÜG. In addition, reference shall be made to the provisions of the Baubetriebeverordnung [Regulation on the Building Industry].
1.11 Hiring out the employees to third parties shall be excluded.
2 Implementation of the Collective Agreements regarding Sector-Specific Supplementary Pays
2.1 As of 1 November 2012, there are collective agreements regarding sector-specific supplementary pays [TV BZ] in the temporary employment industry. At present, the following TV BZ are known:
2.2 If the P’s company of assignment, to which the temporary worker is hired out, does not fall within the scope of a TV BZ upon conclusion of the temporary worker contract, it shall nevertheless be possible that a TV BZ is applicable due to future changes. In this case, both parties shall be obliged to take all measures in order to ensure the future application of the corresponding TV BZ. In such case, Item 5 of these T&Cs shall apply to price adjustments.
2.3 If the temporary worker to be hired out was working in the P’s company of assignment in the last three months prior to the actual or scheduled beginning of the hiring-out period due to being hired out by another RA, the client shall promptly notify the RA. If this facts result in amended claims according to the collective agreement, Item 5 of these T&Cs shall apply to price adjustments accordingly.
2.4 In the event of incorrect information provided in the temporary worker contract regarding the application of the TV BZ, the client shall be liable according to Item 11.4. of these T&Cs.
2.5 In the event of applicability of a TV BZ, there shall usually be a tariff adjustment in several steps up to capping the sector-specific supplementary pays possibly asserted on the basis of the reference earnings of comparable permanent employees. Details are shown in the tiered pricing of the temporary worker contract (see also Item 5.4 of the T&Cs).
3 Duration of the Period of Hiring-Out the Employee
3.1 The minimum hiring-out period for the employees shall be a day (8 hours).
3.2 The temporary worker contract which has been agreed upon for a limited period of time may also be terminated by ordinary notice of termination prior to the end of the time limit set according to Section 12 of the T&Cs.
4 Invoicing Method
4.1 Invoicing shall take place on the basis of hourly records which the employees submit to an authorised representative of the P for signing on a weekly basis and/or upon termination of the assignment.
4.2 The P shall be obliged to confirm by way of their signature the hours of attendance, including maintenance and standby periods, which are made available to them by the employees of the RA. Separate documentary evidence for breaks shall be provided. If it is not possible to submit hourly records to an authorised representative of the P on site, the temporary workers of the RA shall be authorised to confirm instead.
4.3 Invoicing shall take place every week based on the hours of attendance confirmed – without breaks.
4.4 The basis of calculation shall be the hourly rate agreed upon. The price shall be excluding the supplementary pays and the statutory value added tax (VAT). If stipulated in the contract, the fares and daily allowances agreed upon shall be added every work day.
4.5 If additional surcharges are incurred for the temporary employee’s work as per b), c) or d) of the clause above, only the highest surcharge shall be applied.
The following supplementary pays shall be calculated with regard to the hourly rates:
Any supplementary pay for overtime shall basically be calculated for hours which exceed 40.0 hours per week. In case of an employment of less than 5 work days per week, overtime shall be calculated every day based on the daily working hours.
a) Supplementary pay for overtime 25%
b) Night work (11:00pm to 6:00am) 25%
c) Working hours on Sundays 50%
d) Working hours on public holidays 100%
e) Hazardous allowance, dirty work allowance 10%
If there are more than one supplementary pays at once, only the supplementary pay with the highest rate will be counted.
4.6 If the hourly rates increase, particularly due to industry-specific supplementary pays, the increased hourly rates shall be the basis for the above supplementary pays. The same shall apply if the hourly rates are reduced.
4.7 The RA shall create invoices on a weekly basis and they shall be settled according to the payment terms noted on these invoices. In the event of a default in payment, the statutory provisions of Sections 286 to 288 of the Bürgerliches Gesetzbuch (BGB) [German Civil Code] shall apply.
4.8 If the P is in default with payment, the RA shall be entitled to withhold contractual services arising from the business relationship.
4.9 Any objections to the invoices prepared by the RA shall be raised within eight days following the receipt of the invoice concerned in writing towards the RA giving reasons which can be verified. Upon expiry of this period, the P shall explicitly waive any objections with regard to the accuracy of the hours invoiced.
5 Price Adjustment
5.1 Change in the Hourly Rate
The remuneration shall correspond to the status of the respective statutory and collectively agreed labour costs and indirect labour costs at the time of the conclusion of the contract. Collectively agreed, statutory or other changes, particularly regulations according to the collective agreement and / or agreements made with the works councils which prescribe that the RA must grant to the employees additional parts of remuneration, or the statement that the principle of EQUAL TREATMENT shall be applied to the hiring-out of an employee (cf. Item 1.4 to 1.6 of the T&Cs) shall entitle the RA to arrange for an adequate adjustment of the hourly rates. Methodically, the current hourly rates shall be adjusted by double the amount by which the gross remunerations of the employees increases.
5.2 Announcement / Duty to Notify
The price adjustment shall take effect two weeks upon receipt of the written announcement regarding the increase in price. In the event of the application of the principle of EQUAL TREATMENT being statutorily required (cf. Item 1.4 of the T&Cs), the price adjustment shall immediately take effect upon application of the principle of EQUAL TREATMENT.
5.3 Price Reduction
In the event of a reduction of the hourly rate of the employee hired out, Items 5.1 and 5.2 of the T&Cs shall apply accordingly for the price reductions in favour of the P.
5.4 Tiered Pricing in the Temporary Worker Contract
The tiered pricing regulated in the temporary worker contract, provided a TV BZ can be applied, (cf. Item 2.5 of the T&Cs) shall automatically be adjusted in favour of the P if the provisions of the relevant TV BZ according to the collective agreement result in the industry-specific supplementary pay only becoming applicable at a later date than originally calculated and thus only resulting in a higher collectively agreed remuneration for the employee at a later date. In this case, the higher hourly rate shall only be invoiced at the time when the employee, too, receives the correspondingly higher industry-specific supplementary pay.
6 Authority of the P to Issue Instructions
The P shall be entitled to issue any instructions to the employee which fall within the defined area of activity according to their type and scope.
7 Duties of the P
7.1 The P shall be obliged to brief the employees about the activity, to instruct them during work and to supervise them. The P shall ensure that all statutory, official and other regulations are complied with during work.
7.2 Furthermore, prior to the beginning of work, the P shall point out to the employee the specific sources of danger of the place of activity with regard to health and safety, which they may be exposed to during work. At the same time, they shall inform the employee about the measures and equipment which serve to prevent these dangers.
7.3 Any works during which the employees come into direct contact with working materials hazardous to health shall be coordinated with the RA in advance. In particular in these cases, before the beginning of the works, an occupational health check-up shall be arranged by the P at their expense, unless otherwise agreed upon on an individual basis.
7.4 As part of their statutory duty of care, the P shall take adequate preventive measures which protect the employee in terms of their employment during the assignment against any prejudices for reasons of race, ethnic origin, gender, religion or world view, any disability, age or the sexual identity.
7.5 The RA shall at any time be granted access to their employees’ area of activity.
7.6 In the event of an assignment of the employee hired out to a position of trust and with access to money and valuables, a separate written agreement shall be made in advance. Without this explicit written agreement, the employee must not be instructed to transport, deal with or collect any money and other means of payment. Any payments made by the P towards the employee hired out shall be at their risk and no corresponding objections may be raised against the RA.
7.7 The P shall be obliged to promptly inform the RA – possibly also by telephone – about any ongoing or forthcoming industrial action in the company of assignment.
7.8 The P shall not be allowed to make advances on wages to the employees of the RA. They must not use the RA’s employees to transport or collect money.
7.9 The P shall be obliged to promptly inform the RA if they provide benefits for the temporary workers which are relevant under income tax law and social security law. In this case, the P shall also be obliged to provide full information regarding the type and amount of benefits relating to the respective temporary worker no later than the eighth day of the following month of the benefit so that the RA is able to consider this in their payroll accounting.
8 Duties of the RA
8.1 Upon request, the RA undertakes to submit qualification certificates with regard to the employee named (e.g. apprenticeship diploma [Gesellenbrief], skilled worker’s certificate [Facharbeiterbrief], driver’s licence).
8.2 The employees made available to the P shall be selected according to the job profile and the activity described by the P.
8.3 The PD’s obligation to perform the contract shall be restricted to the employee named. If this employee is prevented from performing their work, without the RA being responsible for it (e.g. due to sickness or an accident), the RA shall be released from their duty to perform the contract for the duration of this employee being impeded from performing their work.
8.4 If it turns out in exceptional cases that an employee hired out is not suitable for the works provided for, the P may reject the employee within the first eight working hours of the first work day. In this case, the RA shall not be entitled to invoice the working hours.
8.5 Any unforeseeable, unavoidable events and those outside the sphere of influence of the RA and thus outside their responsibility such as force majeure, traffic disruptions, industrial action (strike or lockout) shall release the RA from their scheduled obligation to perform services for the duration of the event.
8.6 If the event lasts longer than six weeks or if, due to the event, it becomes impossible for the RA to perform the service, both the P and the RA shall be entitled to terminate the contract without notice. In these cases, no liability for damages shall exist.
8.7 The RA shall impose upon their employees to comply with the work regulations on the P’s premises and to maintain confidentiality as if it was towards an employer.
8.8 The P may expel the employee from the assigned work place during the work assignment if there is a reason which would entitle the employer to give extraordinary notice of termination according to Section 626 Para. 1 BGB.
9 Placement of Staff // Agency Fee also upon Prior Hiring-Out of a Worker
9.1 If a service or employment relationship comes already into existence between the temporary worker introduced by the RA or a candidate who has the status of an applicant and the P prior to the beginning of hiring-out of the worker agreed upon, the RA shall be entitled to payment of an agency fee by the P. The recruitment fee is double the gross average monthly wage last received by the temporary worker from the RA over the last six months, excluding any surcharges for overtime, night work, work on Sundays or public holidays, hazard pay and dirt money, but including any industry surcharges plus the legal VAT. An agency fee shall also be payable if the contractual relationship with the temporary worker in terms of Item 9.1 is founded on the ongoing hiring-out of the worker to the P or within six months following the termination of the hiring-out of the temporary worker. Point 9.1 Clause 2 applies in this case when calculating the recruitment fee.
9.2 The recruitment fee is reduced by 1/12 for every full month worked by the temporary employee based on the contract staffing arrangement with the employer over the last twelve months.
9.3 The recruitment fee is thus “zero” after a full twelve months of work.
9.4 The recruitment fee is payable upon conclusion of the contract between the employer and the temporary employee, or at least by the time the temporary employee actually commences work at the employer’s company.
9.5 In the event of recruitment within six months of the contract staffing scheme commencing, the employer does not have to pay the recruitment fee if it can prove that the hire is not based on the previous contract staffing arrangement.
9.6 Points 9.1 to 9.5 apply accordingly for hires by a company affiliated with the employer as per Section 15, unless the employer can prove this is not based on the prior contract staffing arrangement.
9.7 Points 9.1 to 9.6 apply accordingly when employing a candidate who has the status of “applicant” at the RA. The recruitment fee is then calculated based on either the gross monthly remuneration already promised to the candidate by the RA or the gross monthly remuneration typically paid by the RA to the temporary employee with the candidate’s qualifications and skills.
10 Confidentiality, Data Protection
10.1 The P undertakes not to pass on, generally or to any third party, any data transmitted by the RA, in particular prices, knowledge or experiences (“INFORMATION”) neither in writing nor verbally or in any other way. The aforementioned obligation shall not apply to INFORMATION which is generally known or becomes generally known at a later date – which can be proven – without breaching the present obligation or of which the P was already aware prior to the receipt of the INFORMATION or at a later date, which can be proven, without breaching the present agreement.
10.2 Any rights (including industrial property rights and copyrights) with regard to INFORMATION disclosed shall be reserved. The disclosure shall not authorise the P to use the INFORMATION for any other purposes than those agreed upon.
10.3 Confidentiality shall also apply to data which falls within the scope of the data protection act. The parties will only process and use personal data of the respectively other party and their employees for contractually agreed purposes. In particular, they will secure personal data against unauthorised access and will furthermore neither record, store, reproduce nor use them in any form or exploit them or pass them on to third parties without the consent of the person entitled to them.
10.4 The RA and the P shall observe the Bundesdatenschutzgesetz [Federal Data Protection Act] in its respective version.
11 Liability of the RA and the P
11.1 The RA is not liable for work performed by the temporary employee, as temporary employees only perform their work based on the employer’s instructions. The RA is particularly not liable for poor performance or damages caused by the temporary employee. A temporary employee is not an assistant or authorised representative of the RA.
11.2 Temporary employees are not entitled to collect money for the employer; the RA is thus not liable for damage caused by virtue of a temporary employee being entrusted with monetary matters, such as cash management, storage and administration of money and securities, and similar business. This does not apply if the aforementioned work is the express subject of the temporary employment contract.
11.3 The RA shall be liable for the proper selection of an employee suitable and qualified for the specific activity and for their provision during the hiring-out period agreed upon. The RA shall be liable according to statutory regulations in the event of culpable violation of life, body or health.
11.4 Furthermore, the RA shall be liable according to statutory provisions in cases of intent or gross negligence, including the intent or gross negligence of their representatives or vicarious agents. In cases of gross negligence, the RA’s liability shall be limited to the foreseeable damage typically occurring.
11.5 The RA is also liable under the legal regulations, insofar as it culpably breaches a major contractual obligation, which exists if said breach relates to an obligation indispensable to proper contract execution, and which the customer can rely on being fulfilled. In this case, the staffing provider’s liability is similarly limited to typical, foreseeable damage.
11.6 For the rest, the RA cannot be held liable, regardless of the legal grounds. This particularly applies to compensation claims resulting from debts existing at the time of contract conclusion, from breaches of ancillary contractual obligations and other breaches of obligations, unauthorised actions, and other tortious liability, to claims resulting from non-contractual damage, to indirect damage and consequential damage, particularly production outages, to customer data losses, and to compensation claims for lost profit.
11.7 Insofar as liability is limited by the above clauses, this also applies to the personal liability of the staffing provider’s legal representatives, employees and assistants.
11.8 The above rules as per point 11.1 to 11.7 for damage compensation claims also apply to claims for reimbursement of expenses.
11.9 If third parties assert claims based on the work of a temporary employee contracted as per these terms and conditions, the employer is obliged to exempt the RA and/or the temporary employee from these claims, insofar as they cannot be held liable under points 11.1 to 11.8 above.
11.10 If the P fails to provide any, provides incomplete or inaccurate information concerning the application and calculation of industry-specific supplementary pays in the temporary worker contract or if they fail to communicate any changes in full and accurate or if they communicate them with delay and if this results in temporary workers of the RA having suffered an economic disadvantage, the RA shall correct this by means of corresponding recalculations and subsequent payments towards the temporary workers concerned. The RA shall be free to decide whether or not they make reference to exclusion periods towards their temporary workers; in this respect, they shall not be subject to a duty to minimise the damage. The sum of gross amounts thus to be paid (gross wage without the employer’s contribution to the social security) shall be deemed to be a damage between the parties for which the P shall compensate the RA. In addition, the P shall reimburse the RA for the costs and the loss of profit with regard these non-calculated amounts as damages. By mutual agreement, this costs and loss of profit shall be fixed at 120% (mark-up) of the gross wage set out above. The P shall be entitled to prove that the mark-up was lower based on the framework agreement presented here and shall be applied for the loss of profit instead of the 120% stated. Moreover, the P shall be obliged to exempt the RA from any claims by social security institutions which they assert against the RA on the basis of the aforementioned basis for liability regardless of gross remunerations.
11.11 Point 11.10 applies accordingly if the employer contracts the temporary employee to perform tasks justifying entitlement to a minimum industry wage as per Section 8 Para.3 of the Posted Workers Act (AEntG), even though this has been expressly prohibited in the contract staffing agreement.
11.12 If the information provided by the employer in the contract staffing act relating to the relevant legal system/generally binding collective agreement as per Section 8 Para.3 AEntG proves to be incorrect based on the tasks actually assigned to the temporary employee, point 11.10 applies accordingly.
12 Notice of Termination
The contract may be terminated within the first five work days with a two (2) business days‘ notice period on any Friday and, after this period, with a five (5) calendar days‘ notice period on any Friday.
12.1 The right to termination without notice for good cause shall remain unaffected.
12.2 Any notice of termination must be given in writing.
13 Contract Clause – Set-Off
13.1 Any parts of the contract – including collateral agreements – shall be made in writing in order to take effect according to Section 12 Para. 1 Sentence 1 AÜG in connection with Section 126 Para. 2 Sentence 1 BGB.
13.2 If individual provisions of this contract are ineffective, the validity of the remaining contract shall remain unaffected. The parties undertake to replace the ineffective provision with an effective provision which comes closest to the ineffective provision in terms of its economic and legal intent.
13.3 The P may only claim a set-off or a right of retention against the RA’s claims if the claims are uncontested and have been legally established.
13.4 The place of jurisdiction for any legal disputes arising from this contractual relationship shall be Dresden.
Our terms and conditions are available as a PDF document on the Certifications page.