Cross border assignment of posted workers

Within the European Union (EU), on a regular basis, employers use posted workers to complete assignments or perform work in other countries than the worker’s home country. In order to regulate such cross border assignments of posted workers, the EU has created a directive that provides rules and regulations for the posting of workers with the purpose of providing services within another EU country.

On July 18th of this year The Netherlands adopted a new law (the Employment Conditions of Posted Workers win the European Union Act or Wet arbeidsvoorwaarden gedetacheerde werknemers in de Europese Unie, or, WAGWEU). This new law regulates the implementation of the above described EU directive  and has replaced the former Employment Conditions Cross Border Work Act (Wet arbeidsvoorwaarden grensoverschrijdende arbeid or Waga). Below you will find the new rules which EU employers will have to take into account when posting workers in the Netherlands.

Specific Dutch employment law regulations have been declared to be applicable to the employee who – as a result of cross border assignment – is temporarily performing work in the Netherlands and whose employment agreement is governed by a law other than Dutch law. It concerns regulations with regard to wages, such as the chain of liability of payment of wages. In addition, rules apply regarding the employer’s information obligation, duty of care and employer liability.

The above described new law also determines that the Dutch Labour Inspectorate (Inspectie SZW) is entitled to collect and process data with regard to posted workers and service suppliers. Such data will be used to determine whether other laws, such as the Foreign Workers Act (Wet Arbeid Vreemdelingen) and the Employment Conditions Act (Arbeidsomstandighedenwet), have been complied with.

Employers are obligated to provide the Labour Inspectorate with the above described data and information. Such information is used to determine whether a company carries out substantial activities with regard to assigning workers (from) abroad and whether the posted worker is performing work in The Netherlands. In order to facilitate the Labour Inspectorate in the collection of said data, the employer has to appoint a contact, to be available to the Labour Inspectorate for sending and receiving information with regard to the posting of workers.

During the period that the employee is posted abroad, the ‘host-employer’ also has to make sure that certain documents are available at the employee’s place of work. Such documents include the employee’s employment agreement and an overview of the number of hours that the posted worker actually worked.

The above described law also determines that certain stipulations provided by generally binding Collective Bargaining Agreement (CBA) clauses, may also apply to workers posted (from) abroad.

Last but not least, the law provides that the law determines that the so-called chain regulation (allowing for a maximum of three fixed term employment agreements within a period of a maximum of 24 months) can be reduced to a maximum of three months (by CBA or authorized governing body) for certain positions that, as a result of climatological or natural circumstances, can only be fulfilled for a maximum of nine months a year.

Non-compliance with the law is penalised with an administrative penalty, imposed by the Labour Inspectorate. The maximum penalty amount is EUR 20.500. Recurrence will increase the penalty with 100 percent. Recurrence of a serious offence will result in a penalty increase 200 percent.

On March 8th, 2016 the European Commission announces that it would be implementing further amendments tot he Posted Workers Directive. The most important amendments will be with regard to the wages of the posted worker as well as the stipulation that if a worker is posted abroad for more than 24 months, the employment laws of the host member state will apply to the worker.

Would you like to receive more information or personal advice? Please contact one of our International Desk members or employment law specialists. They will be happy to help.

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