Improved enforcement of cross-border posting

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The Act on Employment Conditions for Posted Workers in the EU came into force on 3 June 2016. The Act implements the European Enforcement Directive and aims to improve the protection of posted workers. Below is an overview of the most important measures.

Duty to notify the Minister of Social Affairs and Employment

Service providers from another Member State who temporarily post workers in the Netherlands will be required to make a formal notification to the Social Affairs and Employment Inspectorate (SZW).  This requirement will come into force once a digital notification system is available, (expected to be available on 1 January 2018). The notification will allow the SZW to verify that the core set of employment conditions (see below) are adhered to.

The notification must include:

• the identity of the service provider,
• the service recipient and the worker;
• a designated contact person;
• the identity of the person who is responsible for payment of wages;
• the nature and probable duration of the work;
• the address of the place of work; and
• the contribution for the applicable social security schemes. 

In addition to notifying the SZW of the prescribed information set out above the service provider must keep copies of certain documents (digital or hard copy) at the site where the work is performed, such as copies of employment contracts, payslips, working hour statements and proof of payment of wages. This requirement is already in force.

Passenger and freight transport, except cabotage operations, will be exempt from the notification requirement and small service providers may have some other exemptions from the full regime.

Duty to verify notification

The service provider must provide the service recipient with a written or electronic copy of the notification prior to the start of the work. The service recipient must verify the notification and report any inaccuracies to the Minister of Social Affairs and Employment.

Core set of employment conditions

Workers who are temporarily posted to another EU country are entitled to a core set of employment conditions (such as maximum working hours and minimum rest period and minimum wages and anti-discrimination provisions). The new Act clarifies, in particular, which pay components belong to the minimum wage if this wage is to be paid on the basis of a binding collective labour agreement. These include for example, payments for overtime, holiday allowances, shift allowances, interim wage increases and other costs which are necessary for the performance of the function. Additionally, the Act also determines that certain entitlements regarding social security benefits and occupational pension schemes as well as expenses relating to the posting (such as additional costs for double accommodation and travel costs between country of residence and country of employment) should be paid on top of the minimum wage. The government will publish on a website the core set of employment conditions, as laid down in the Act and/or generally binding Collective Labour Agreements (CAO).

Scope 

The Act is applicable to the following forms of cross-border posting:

Straightforward service-provision: a service provider from one Member State carries out a service with workers under its own management and supervision and for its own account in another Member State;

Intra-group posting: an employee of a branch of a company in one Member State is posted to a branch of the same company in another Member State.

Temporary agency work: a temporary agency worker is made available in a Member State other than where the temporary-work agency is located (in this case, management and supervision are performed by the service recipient).

Further information

For further information or to discuss any of the issues raised, please contact  Edith Franssen at Loyens & Loeff on T: +31 (10) 2246453 and email edith.franssen@loyensloeff.com

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