|Limiting the broad concept of ‘employment’|
For years, the Foreign nationals employment Act (Wav) has enjoyed a very broad concept of ‘employment’. The Labour Inspection and the courts often refer to the legislative history in which a broad understanding of ‘employment’ was established in order to counteract sham constructions and to limit the burden of proof for enforcement. Employers, for example, who would never be regarded as an employer by labour law are regularly fined. Whether there is a contract, authority or salary is irrelevant, thus making an entire range of employers (clients, contractors and all subcontractors) subject to fines.
If you make work possible or do not prevent it you can be classified as an employer under the Wav. The Labour Inspection is legally supported in stretching the concept of ‘employment’ to an almost unlimited degree including even a company that uses another company’s services as an employer of the latter company.
The aforementioned was, fortunately, considered to be too much for the Administrative law Chamber of the Dutch Council of State, our highest administrative court. If the position of the Labour Inspection had held up this would have meant that a company personnel taking a business trip, booking a hotel stay or buying office supplies, must separately determine whether the trip, the hotel or the office supply company would be employing people who might not be allowed to work. If they would not do so they would subject their company to fines. According to the Council of State highest administrative however, not every customer who buys a product or service, whether factually or legally tied, can be considered as an employer under the Wav.
What this means in practice is not so clear yet. Another example of a restriction on the broad concept of ‘employment’ by the court is a situation where someone comes to the assistance of another or performs a single act of kindness. In a case of coming to the aid of a passerby or a customer, for example, it is fortunately not necessary to ask this person for his papers, although the Labour Inspection may think differently about this.
Be careful: if this assistance stretches a little further it could still be construed as employment.
Finally, another example which does not, by definition, have to be a case of employment. This is a situation in which there is an intermediary who merely mediates or carries out administrative duties. It depends greatly on the facts and circumstances of whether this agent also can be regarded as an employer. If the labour activities extend beyond mediation or administration this may also be considered to fall under the scope of ‘employment’.
In summary: beware the Labour Inspection can imagine situations where you would never think you could be considered to be an employer. In a number of cases it may, therefore, be worthwhile to go to court in order to bring the broad concept of ‘employment’ back to somewhat more reasonable proportions.