Posting staff within the EU? New obligations for employers
The law for implementing European Directive 2019/1152 will come into effect on 1 August 2022. This will have consequences for employers.
The change can be attributed to the European Directive on Transparent and Predictable Working Conditions, and has introduced a new set of legal provisions. This change in legislation will also have major consequences for entrepreneurs that operate at international level.
Do you want to post an employee from the Netherlands to another country within the EU? Then be very careful as of 1 August 2022!
Posting within the EU:
Do you want to post an employee from the Netherlands to an EU Member State? Then you will be subject to an additional obligation to supply information as of August 2022. You must inform employees about the following facets before they leave:
- the salary to which they are entitled under law within the receiving Member State;
- all allowances that accompany the posting and all arrangements for reimbursing travel, accommodation and meal costs;
- a link to the official national website(s) of the receiving Member State.
Posted Workers Directive applicable
The change above only applies to employees who are subject to the Posted Workers Directive (Directive 96/71/EC). These are employees who are temporarily supplied to perform services abroad. Please note that the changes above do not apply to seafaring personnel employed by shipping companies.
No adverse treatment
Employees who decide to invoke these new rights may not be dismissed or otherwise treated adversely because they have done so.
The other main changes are as follows:
- The possibility of including an ancillary activities clause will be restricted, which means employees will not be able to work elsewhere during their employment. In general, such stipulations will no longer be permitted as of 1 August 2022, unless there is objective justification for doing so; However, this objective justification need not be determined in advance. You can also introduce it when the employee objects to the validity of the clause.
- The study costs clause will also largely come to an end, which means training costs must be (partly) repaid at the end of the employment agreement. This study costs clause will no longer be valid as of 1 August 2022 for courses that are compulsory by law or fall under the collective labour agreement. A study costs clause will still be possible for non-compulsory courses. Please note: ‘Statutory training’ is a broad term. Before making any study agreements, clearly determine whether or not there are grounds for agreeing a study costs clause.
- As of 1 August 2022, employers must register the days and times within which on-call workers can be deployed. These restrictions are referred to as the reference days and times. Employees may be obligated to comply with deployment requests during these reference times. The reference times must also be in keeping with the agreed volume of work/customary work pattern. On-call workers will not be required to respond to calls outside these reference times.
- As of 1 August 2022, on-call workers and employees with an otherwise unpredictable work pattern can submit a request for more predictable and secure work, so they know at which times they are obligated to work. Employers are entitled to reject such requests. However, a response to such requests must be provided in due time (within one month or within three months for smaller employers), otherwise the employee's request will be approved. Finally, the current obligation to provide information will be further expanded, whereby the employer must now provide employees with information about, for example, working locations, a specific end date, leave arrangements, the procedure for terminating the employment agreement, information about the various types of salary (if applicable) and possibly the conditions regarding training or a trial period.
Want to know more?
This change in legislation has consequences for new and existing employment agreements. Make sure that you are well informed about the consequences. ABAB Global Mobility Services has in-house expertise for legal and tax support for employers and expats. Please contact Lis van Engelen, legal counsel employment law, on +31 485 561301 or send Lis an e-mail.