Posted employees? Take Dutch employment law into account
An international employment relationship can be subject to Dutch employment law. Will your employees be working in the Netherlands for a longer period of time? In that case, the 'Rome I Regulation' determines by which legal system the employment relationship is governed. But you must also take into account components of Dutch employment law in case of temporary employment in the Netherlands.
Are you an employer or temporary employment agency established outside the Netherlands (in the EEA or Switzerland)? And do you provide employees for temporary work with a service recipient in the Netherlands? Then the Posted Workers in the European Union (Working Conditions) Act (in Dutch: Wet arbeidsvoorwaarden gedetacheerde werknemers in de Europese Unie - WagwEU) applies. The WagwEU distinguishes three situations of transnational provision of services:
- foreign employers and self-employed persons who temporarily come to the Netherlands to work, bringing their own personnel;
- multinational companies that second employees to their own location in the Netherlands;
- foreign employment agencies that make employees available to a Dutch company.
'Hard core' of employment conditions
Do any of these situations occur? Then the WagwEU applies and your posted employees, regardless of the law applicable to their employment contract, are entitled to certain minimum conditions of Dutch employment law and generally binding collective labour agreements (the so-called 'hard core'). This includes minimum wages, working and rest times, minimum holidays, working conditions and equal treatment.
Does your employee incur travel, meal and accommodation expenses in the context of the secondment? Then you must also reimburse this as of 30 July 2020. Please note: As a foreign employer, you must make clear which part of the compensation paid relates to such costs. If this is not clear, it is assumed that the entire allowance has been paid as reimbursement of these costs and you cannot include the allowance in the minimum wage under the law or applicable collective labour agreement. A few exceptions (currently) apply to posted workers in the transport sector.
Extended 'hard core'
After twelve months, posted employees are entitled to all Dutch employment conditions from the Dutch employment laws and generally binding collective labour agreement provisions, with the exception of provisions on entering into and terminating the employment contract, non-competition clauses and supplementary company pension schemes. The term of twelve months can under certain circumstances be extended to eighteen months.
Special position of posted agency workers
Posted agency workers (in Dutch: uitzendkracht) are also subject to the Dutch Placement of Personnel by Intermediaries Act (Wet allocatie arbeidskrachten door intermediairs - Waadi). Pursuant to the Waadi, an agency worker who you second to a Dutch hirer is entitled to at least the same terms of employment and other compensation as employees in the same or equivalent positions at the hirer. If this right to equal employment conditions has been deviated from in a collective labour agreement, the posted temporary agency worker is entitled to at least the employment conditions set out in the generally binding provisions of this collective labour agreement. However, with the exception of the law on termination of employment and supplementary company pension schemes. These entitlements apply from day one of the secondment and therefore not only after twelve or eighteen months.
Employment conditions from the home country
If certain employment conditions in the home country of the posted employee are more favourable than the employment conditions to which the employee is entitled under these regulations, the conditions in the home country will apply. This is assessed per component. For example, if the home country only has more favourable rules with regard to working and rest times, then the regulations from the home country apply to that component, while the Dutch conditions are leading for the other elements.
Pursuant to the WagwEU, you must also report temporary postings to the Netherlands.
Failure to comply with the WagwEU obligations can, in addition to possible claims from employees, lead to heavy fines. Make sure to inform yourself about the impact of Dutch employment law before the start of the secondment.
ABAB Global Mobility Services has in-house expertise for legal and tax support for employers and expats. Please contact Lis van Engelen, global mobility specialist - employment law, at 0485-561301 or send Lis an e-mail.