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Disguised staff leasing: definition

Disguised staff leasing is a common pitfall with a Werkvertrag. This entry explains the criteria, the legal consequences and how to avoid it.

Key facts
  • An assignment declared as a contract for work or services that is in fact leasing.
  • The features: being bound by instructions and integrated into the operation.
  • Legal consequences under §§ 9, 10 AÜG.
  • Can create an employment relationship with the client company.

Definition and classification

Disguised staff leasing exists where an assignment is declared as a contract for work or Service contract but in fact meets the features of Staff Leasing – such as being bound by instructions and integrated into the client's operation.

What legal consequences are there?

If the appropriate license is missing or the leasing is not disclosed, the contracts are void under §§ 9, 10 AÜG ; an employment relationship with the client company can come into being. On top of that come fines and possible claims for contributions. A precautionary „parachute" license no longer protects if the leasing is not disclosed.

How do you avoid disguised staff leasing?

The key lies in how the work is actually carried out: under a Werkvertrag the contractor has to work on their own responsibility and free of instructions, with a clearly delimited piece of work and their own organization. As soon as the client directs the people like its own employees, the classification tips over. Clean contracts, a clear distinction and, in case of doubt, a status determination procedure are the better route.

Frequently asked questions

Does a precautionary AÜG license protect against the consequences?

No. If the leasing is not disclosed, the consequences of §§ 9, 10 AÜG apply despite a precautionary license.

Who is affected by disguised staff leasing?

Both the client and the supposed contractor – and the people deployed, who can obtain an employment relationship with the client company by operation of law.

Related terms

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