September 26, 2020

Temporary posting of employees: amended obligations for foreign EU employers

By Jan Dop.

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?
 

Transnational provision of services

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:

  • Pure posting: the making available of an employee to the service recipient under the direction and supervision of the service provider to work in another Member State as part of the agreement between the service provider and service recipient.
  • Intra-group posting: the making available of an employee of the company to a branch of the company or a company of the same group in another Member State.
  • Temporary agency work: the making available of an employee, for remuneration, by the service provider to the service recipient to perform work in another Member State under the direction and supervision of the service recipient.
     

Obligations WagWeU

The obligations under the WagwEU for foreign employers are as follows:

1. Minimum terms of employment
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:

  • The term “salary” will be replaced by the term “remuneration”, clarifying which allowances are covered by this term.
  • The hard core of the terms (the terms and conditions of employment which service providers must at least guarantee for their posted workers) will be extended to include housing conditions and certain allowances and compensation.
  • The extended hard core of the terms is applicable to a posting of 12 months maximum, which can be extended to 18 months under certain circumstances.
  • After a posting of 12 or 18 months in the Netherlands, even more terms of employment will be applicable. As a result, the rights of the posted temporary workers are almost fully aligned with those of national temporary workers (except for dismissal law and supplementary company pension schemes).
  • Temporary employment agencies remain responsible for the application of the mandatory terms of employment with regard to the posted worker, even if the service recipient forwards the posted worker to a subsequent service recipient.

2. The obligation to provide information
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.

3.The obligation to designate a contact person
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.

4. The obligation to report
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:

  • The identity of the person reporting, the customer/principal and of the employee(s) posted to the Netherlands
  • The designated contact person
  • The sector in which the activities in the Netherlands are carried out
  • The address of the workplace
  • The nature and expected duration of the activities
  • The identity of the person responsible for salary payment
  • information regarding the country where the social contributions are paid for the employee(s)

5. The obligation to keep records
Finally, the foreign employer must ensure that certain documents (written or digital) are available at the workplace. This regards the following documents:

  • A copy of the employment contract
  • The salary slip
  • Information the employer has to provide to the employee about the essential elements of the employment contract
  • Overview of the hours worked by the employee
  • Documents proving the contribution for the social security legislation, the identity of the service provider, the service recipient, the posted employee and the person responsible for paying the wages
  • Proof of payment of wages
     

Administrative fine

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.
 

Conclusion

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!
 

More information

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. @: jan.dop@russell.nl / +31 20 301 55 55

About the author:

Jan Dop

Jan Dop assists national and international enterprises in all facets of their day-to-day business operations. He specializes in personnel, real estate and issues involving public authorities. Jan is Head of our Embassy Desk, that serves Embassies, Consulates, diplomats and expats. He has been a lawyer at Russell since 1995, and became a partner in 2011.
 


 

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