Secondment of employees: the ban on obstructions
Do you ever use hired personnel from third parties, or do you sometimes make staff available yourself? In that case, you should take into account the ban on obstructions of the Dutch Placement of Personnel by Intermediaries Act (Wet allocatie arbeidskrachten door intermediairs - Waadi) during contract negotiations.
The Dutch Posting of Workers by Intermediaries Act
The Netherlands Posting of Workers by Intermediaries Act (Waadi) is intended to protect employees against rogue employment agencies. However, it has a much broader scope than just the classic agency work structure. The Waadi describes the secondment of workers within the meaning of that act as
“for remuneration, making workers available to another person for the purpose of performing work under his supervision and management, other than under a contract of employment concluded with him,.”
Ban on obstructions
In any assignment of workers under this definition, the ban on obstructions applies. This provision therefore applies not only to traditional employment agencies, but also to a company that occasionally makes workers available to a relation or customer.
The ban on obstructions provides that it is prohibited to place obstructions in the way of an assigned employee concerning the establishment of a direct employment relationship with the party to whom he has been assigned. This means that you cannot prohibit the employee from entering into the service of the end-customer after the assignment has ended. The ban applies only to a direct employment relationship. You can therefore prohibit the employee from working for the same end-customer through another party. It does not matter whether the agreement has been made with the employee or with the hiring party. Any agreement contrary to this prohibition is null and void and therefore immediately invalid.
The only exception is if the hiring party, in directly hiring the hired worker, pays reasonable compensation to the party that originally assigned the worker. This reasonable compensation must be based on the services rendered by the lending party in connection with the assignment, recruitment or training of the worker concerned. But what is a reasonable compensation? In any case, the fee should not qualify as a penalty and must be in proportion to the services rendered and their value. One fixed, unspecified amount will probably not be easily accepted, but a substantiated amount, which decreases, for example, with the time that the assignment lasts, is more likely to hold.
The scope of the ban on obstructions has been stretched in case law in recent years. Where the article refers to workers and an employment contract, it has now been ruled that the article can also apply to the hiring of self-employed persons. The question of whether the new employment is temporary or permanent does not seem to make any difference for the application of the ban on obstructions.
You are advised to carefully check whether the ban on obstructions may apply when hiring or outsourcing workers. Make an inventory in advance of possible future scenarios and review what is possible within the Waadi to prevent or promote certain situations.
Would you like to know more about international employment contracts? 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, on +31 485 561301 or send Lis an e-mail.