Foreign seconders and temporary employment agencies must guarantee the Dutch terms and conditions of employment to their personnel working in the Netherlands. They are also obliged to allow inspection by the Inspectorate SZW.
The Terms of Employment Posted Workers in the European Union Act (WagwEU) regulates a number of obligations for EU employers who temporarily post employees to the Netherlands as part of the transnational provision of services. What do these obligations from the WagwEU entail? And what are the changes as of 30 July 2020?
The WagwEU is an implementation of the revised European Posting of Workers Directive and imposes obligations on foreign employers who temporarily post employees to the Netherlands as part of the transnational provision of services. There are three types of transnational provision of services:
The obligations under the WagwEU for foreign employers are as follows:
The foreign employer must guarantee the employee he temporarily posts abroad at least the most significant terms of employment under Dutch law (the hard core of the terms). This regards, inter alia, the minimum wages, sufficient rest periods, safe work conditions, equal treatment of men and women, and the entitlement to a minimum number of days holiday.
The revised Posting of Workers Directive will be implemented by 30 July 2020, which means that:
If requested, the foreign employer must provide the Inspectorate SZW with data and information so the Inspectorate SZW can establish whether the posting company actually performs substantial activities to post employees in the context of cross-border provision of services and whether the posting is indeed temporarily.
The foreign employer must designate a contact person in the Netherlands. This contact person must be available during the posting period and must stay in the Member State to which the employee is posted. The contact person is available for sending and receiving documents and notifications regarding the service provision and acts as the contact person for the service provider, who is the contact person for the Inspectorate SZW.
The foreign employer must report the arrival of all posted employees to an online reporting counter, that sends the reported information to the Inspectorate SZW, the Social Insurance Bank and the Tax and Customs Administrations. In any case, the following information must be reported:
Finally, the foreign employer must ensure that certain documents (written or digital) are available at the workplace. This regards the following documents:
If the obligation to report, to keep records and/or to provide information is not met, an administrative fine can be imposed on the foreign employer. In the event of multiple violations, a fine will be imposed per violation. However, there is room for moderation of the administrative fine, depending on the nature and seriousness of the violation, the degree of culpability and the proportionality.
There are quite a few obligations, you, as a foreign employer, have to meet if you post employees to the Netherlands. If you fail to meet the obligations, you run the risk of incurring a substantial penalty. So make sure to be well informed about the obligations!
Do you want to know whether your posting falls within the scope of the WagwEU? Are you looking for a contact person in the Netherlands to meet the obligation to designate a contact person and the duty to report? Or do you want more information about the obligations – and the sanctions/penalties imposed thereon – you, as an employer, have under the WagwEU? Please contact us:
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