There are three categories of posting:
- Posting based on a contract between the service provider and the service recipient, the service provider not being a temporary work agency. This means that a service provider from a different member state comes to the Netherlands to perform a job with personnel under the management and supervision and at the expense of the service provider. For example, a German company which comes to build a bridge on the orders of a Dutch service recipient.
- Posting within multinational groups. Posting can also take place by seconding an employee of a branch of a group in another member state to a branch of the same group in the Netherlands.
- Temporary agency work. Making temporary agency workers available in the Netherlands, while the temporary employment agency has its registered office in another member state. The management and supervision with temporary agency work is not the responsibility of the service provider (the temporary employment agency), but of the hirer (the service recipient). However, the temporary employment agency remains responsible for the terms of employment of the temporary agency worker.
Hard core of the terms of employment
Employers are obliged to assign certain minimum terms of employment to the personnel that comes to the Netherlands to work temporarily. The so-called hard core of the terms of employment always consists of the following Dutch labour laws: the Minimum Wage and Minimum Holiday Allowance Act, the Working Hours Act, the Working Conditions Act, the Placement of Personnel by Intermediaries Act (Waadi) and the Equal Treatment Act. Moreover, it is also important that when a foreign employer gets to work in a sector in which a universally binding collective agreement applies, the hard core of the terms of employment from this collective agreement also apply. The posted workers are, during the term that they are actually working on Dutch soil, entitled to the provisions of the universally binding collective agreement which deal with for instance (not limited to) maximum working hours, holidays, wages, expenses, increments, health, safety and hygiene work conditions and equal treatment man/woman etc.
Whether a universally binding collective agreement applies can be checked on: http://cao.minszw.nl/.
When obligations in the labour laws are not observed, the Inspectorate SZW may impose a fine. If the hard core provisions from the universally binding collective agreement are not observed, employees and/or social partners may institute an action against the employer.
The initial law exists since 2016. What’s new as of March 2020:
- Notification obligation posted workers to The Netherlands
- Obligation to notify posted workers entered into force per March 1, 2020
- Notification portal of Ministry of Social Affairs and Employment (SZW) went online on February 1, 2020 (www.postedworkers.nl)
- De-registration will not be necessary after the end date of the secondment.
- The Dutch employer has the duty to check the online notification before the commencement of the activities!
Required information to notify (This is also allowed by a third party, however, the sending company remains fully responsible).
- Identity of the person who notifies;
- Company of the non-Dutch service provider;
- Company details (including sector code) of the Dutch service receiving company;
- Work location(s) (exact address);
- Dutch Contact person (article 7 WagwEU);
- Expected duration of the activities;
- Identity of the posted workers;
Enforcement – Penalty decision
In order to guarantee compliance with the administrative obligations, the ‘Penalty Decision WagwEU 2020’ has been published.
This Penalty Decision Policy contains sanctions for both the foreign service provider and the (Dutch) service recipient. To start with, the service provider is obliged to provide all necessary data and information. If the service provider does not make the notification or if the notification is done incorrect, the service provider risks a fine of EUR 6,000 (if self-employed: EUR 3,000).
Secondly, the service provider, who posts an employee to the Netherlands, is obliged to report this electronically before commencement of the work. In the event of notifications which are not (correctly) done, the amount of the fine (depending on the number of posted employees) varies between EUR 1,500 and EUR 4,500 (if self-employed: EUR 750).
Finally, the service provider shall ensure that the employment contract and additional documents are (digitally) available at the workplace. The amount of the penalty shall be EUR 8,000 if the service provider does not comply with the availability of the documents within a reasonable period of time during the period of posting and five to seven years after the posting (if self-employed: EUR 4,000).
As already mentioned, the new policy rule also contains sanctions for the (Dutch) service recipient. The service recipient risks a fine of EUR 1,500 (if a natural person: EUR 750) for not verifying the electronic notification or for not having received the copy of the electronic report.
These fines can be increased in the event of a recidivism. Depending on the circumstances, moderation is also possible. The Inspectorate of Social Affairs and Employment will conduct inspections from March 1, 2020. From September 1, 2020, failure to comply with the notification obligation will be punishable. The obligation to provide information and the administration obligation are already sanctioned.
Where EMG can assist
We can assist you with either informing and supporting your staff on the reporting requirements and/ or we can do the reporting on behalf of the foreign service provider of all your transnational services to limit the risk of fines.
Also, EMG can assist in assessing if the posted employees need to be notified or that these employees and / or their actual activities can be regarded as exempted from the notification obligations.
Want to know more about the unique advantages of partnering with EMG? Contact us or let us contact you!