The position of posted workers is regulated at EU level.
The legal framework is provided by
The Directive 2018/957 of 28 June 2018 amending Directive 96/71/EC, provides for more extended rights for posted workers and is to be implemented by the EU and EER Member States by 30 July 2020.
A "posted worker" is an employee who is sent by an employer of an EU or EER member state to carry out a service in the Netherlands on a temporary basis, in the context of a contract of services, an intra-group posting or a hiring out through a temporary agency.
Posted workers are different from EU mobile workers in that they remain in the host Member State only temporarily and do not integrate its labour market whilst their employment is usually regulated by the labor laws of the country of origin.
EU law defines a set of mandatory rules regarding the terms and conditions of employment to be applied to posted workers, to guarantee that these rights and working conditions are protected throughout the EU and to ensure a level-playing field and avoid "social dumping" where foreign service providers can undercut local service providers because their labour standards are lower.
The EU rules establish that, even though workers posted to another Member State are still employed by the sending company and subject to the laws of that Member State, they are entitled to a set of core rights in force in the host Member State, which include:
The employee may always apply the "most favourable regime": the laws of the host country do not apply when the working conditions applicable to the worker in accordance with the rules of the sending Member State are more favourable.
The WagwEU is in fact an implementation of the aforementioned EU Directives which apply to posted workers assigned within the EU and the EER.
The WagwEU is adopted per 1 June 2016, but did effectively not enter into force untill 1 March 2020 with the launch of the online notification platform.
The WagwEU provides for:
Employees from EU or EER countries who are assigned to work in the Netherlands are entitled to the main terms of employment that apply in the Netherlands. This includes amongst others the right to:
In sectors where a Collective Labor Agreement (CAO) applies, posted workers are also entitled to the ‘hard core’ of the terms of employment from these CAO's.
The employers of posted workers must monitor the adherence to these terms in order to comply with the WagwEU obligation.
The obligation to notify rests on Service Providers based in another EU/ EER member state which:
Service Providers typically include employers, but can also include independent contractors/ self-employed persons.
The duty to notify applies only to self-employed persons if they work in certain designated sectors.
If a self-employed person is working in one of the following sectors (or sub-sectors of these sectors) he/she is likely to have the obligation to notify:
The sector in which the self-employed person works is assessed on the basis of the following criteria:
There is in any case no obligation to notify:
Incidental work for which no notification is required includes:
Special rules apply to the transport sector: most types of transport are excluded from the duty to notify, whereas for other forms of transport (specifically freight transport by road) the notification can be done through a one-year notification.
Qualifying small businesses (1-9 employees) and self-employed persons who are based within a 100-kilometer radius of the Dutch border and who work regularly in the Netherlands, can suffice with a one-year notifiation, unless it concerns parties in the construction or the temporary employment sector.
The notification obligations of the WagwEU apply as of 1 March 2020.
Assignments in relation to projects that started before 1 March 2020 do in essence not have to be notified, and there is a leniency period for penalties up to September 2020.
The notification must always be done before the work is actually performed in the Netherlands.
The recipient of the service (client) for which a notification is required is obliged to check whether a notification has been filed and review whether this notification is correct. The client will be notified when a foreign Service Provider has notified the arrival of employees assigned to client.
The client can inspect and review the notification online. This notification gives the details of the self-employed person or the company and the employees who are coming to work for the client: the address/place where the work will be performed, a description of the work, and how long it will take.
If there are any errors in the notification, the client must make a notification in the portal and request the foreign Service Provider to make amendments.
The notification must be done on a dedicated online notification portal:
The legal representative of the Service Provider (individual) must first register him/herself and his/her company through a secured registration procedure. It is not possible to have this done by a company or legal entity.
If the foreign Service Provider has the obligation to notify, this will in any case relate to the following data:
The information provided will be received by the Inspectorate SZW (Social Affairs and Employment), the Dutch Social Insurance Board (SVB) and the Dutch Tax and Customs Administration, which can use the information provided to enforce applicable Dutch law, including the specific sections of Dutch labour laws (amongst which the WagwEU), Dutch social insurances and Dutch tax laws.
The Inspectorate SZW checks whether employers abroad, self-employed persons and clients are complying with the WagwEU. Along with the Dutch Tax Administration and the SVB, the Inspectorate SZW has direct access to all notifications.
Also the Dutch Immigration and Naturalisation Service (IND) can request information from the notification portal if a posted foreign national requires a residence permit, and finally the social partners can request information from the notification portal to check compliance with collective labor agreement (CAO) conditions.
Non-compliance with the obligations created by the WagwEU of the Service Provider (employer or self-employed), the client or other parties falling under the scope of WagwEU, can be sanctioned with penalties.
The Inspectorate SZW monitors the execution of the WagwEU and the compliance with Dutch labour laws.
If a check by the Inspectorate SZW reveals non-compliance with the WagwEU or Dutch labour laws, penalties may be imposed. The social partners monitor compliance with the provisions in the CAO's.
If a check of other information or a visit to the workplace reveals that the arrival of the foreign employees has not been properly or timely notified, penalties may be imposed on both the employer and the client.
We offer a wide range of services with regard to the compliance relating to posted workers assigned to the Netherlands (WagwEU).
This can include amongst others the following:
If our are interested in our services we will gladly prepare a concrete service and fee proposal for you.