From 1 March 2020 employers and self-employed from other EU Member States who are posting a worker in the Netherlands must notify this in advance via the online portal or risk a penalty of up to €4,500 per posted worker.
The company in the Netherlands receiving the posted worker is obliged to verify whether the notification was timely and correct or risk the same penalty.
The penalties can be issued cross-jurisdiction: the Dutch enforcer, the Inspectie SZW, can issue a penalty to a foreign service provider or assignor, but you can also be confronted with a penalty from an enforcer in another Member State.
The notification and verification requirement applies to all posted workers, including those who are citizens of the EU.
The four freedoms of the EU and the EER include the freedom of services: companies and persons are allowed to perform a service in another Member State and have the work carried out by their own, regular personnel. To ensure fair competition and employment conditions, the European Commission has adopted 2 Directives: According to Directive 96/71 (Posted Workers Directive) (Detacheringsrichtlijn), a posted worker is entitled to a set of core rights that are in force in the host Member State. Directive 2014/67 (Enforcement Directive) provides for measures the Member States must take to ensure compliance with Directive 96/71/EC. One of these measures is the introduction of a notification requirement.
Posted Workers Act (WagwEU)
In the Netherlands, these Directives have been implemented in the Posted Workers Act (WagwEU).
Does the WagwEU apply to me?
The WagwEU applies to you if:
- you provide a service in another Member State, as a self-employed or with your own personnel
- a person or company from another Member State provides a service to you and is carrying out work in the Netherlands
- you second an employee to a group entity in another Member State
- you host an employee seconded to you by a group entity from another Member State
- you make personnel available to a client in another Member State
- a company in another Member States makes personnel available to you
Which obligations do I have?
You must ensure that employees you are posting or receiving are remunerated in accordance with the labour laws of the Member State where they will be carrying out the work, pertaining to:
- minimum rates of pay
- maximum work periods and minimum rest periods
- minimum paid annual leave
- the conditions of hiring out workers through temporary work agencies
- health, safety, and hygiene at work
- equal treatment of men and women
In the course of 2020 these rules will be further tightened. Employers will be required to pay the market level salary of the host country rather than the minimum wage. Additionally, the maximum duration of a secondment will be 12 months with a possible extension of 6 months, after which the host member state’s labour laws will be fully applicable.
The company posting the worker will need to designate a contact person as point of contact for the authorities of the host Member State. The contact person must be available in the host member state and the contact details must be shared in the notification.
Record keeping duty
The company hosting the worker must obtain certain documents and keep those at the work location. The following documents must be kept on file:
- the employment contract
- the payslips
- a work time sheet
- evidence of payment of social premiums
- evidence of payment of wages
These documents can be kept as either digital or paper copies and must be available for enforcement officials at the work location.
The company posting the worker must notify this in advance via this online portal. We made a checklist of all the information you need to do the notification, which you can download here. An FAQ can be found here.
The receiving company must ask the company posting the worker for a copy of the notification and verify whether the notification was timely, and the provided information correct. If not, the receiving company must report this, and the worker may not commence work. Only then the receiving company can avoid a penalty.
The notification and verification requirement will take effect on 1 March 2020 and will apply to all posted workers’ activities starting from that date.
Notifications can be done from 1 February 2020.
Exceptions to the notification requirement
Self-employed are only subject to the notification requirement if they work in designated sectors. You can find these sectors here.
Small companies (1-9 employees) and self-employed who are not exempted and who are located within a 100 km radius from the Dutch border may do an ‘annual notification’, provided they:
- Have carried out at least 3 transnational services in the Netherlands in the past calendar year or have filed a valid notification in the past calendar year
- are registered in the trade register or a comparable register in neighbouring countries
- are not working in construction, labour intermediation or personnel management.
Certain activities are exempt from the notification requirement. These activities can be found here.
Want to know more?
If you are unsure whether your business needs to file notifications at all, or if are you wondering whether your business is prepared to remain compliant with this new obligation, or of course if you need assistance with the filing process, feel free to reach out to Marcel Reurs or Bram van Melle.