On December 14, 2016, in a procedure concerning fines imposed by the Inspectorate of Social Affairs and Employment (SZW or labor inspection) on the grounds of the Foreign Nationals Employment Act (Wav), the high court determined that the standard amount for violating Article 15 of the Wav was set too high by the Minister of SZW.
Article 15 of the Wav contains an administrative requirement. Employers whose employees work for another employer (the client) must ensure that the client has identity documentation for each employee. For his part, the client needs to include the documents in his administration and double-check the identity of the employee, in order to determine whether he or she is allowed to work or has (to still apply for) a work permit.
Fine amount increase
Before 2013, the fine for violating Article 15 was €1,500. Then the rules were tightened and the fines were raised. The standard amount was increased by 50% to €2,250. If the infraction was committed by an individual, the amount of the imposed penalty was reduced by half.
Illegal employment
The Dutch Council of State – the highest administrative court – ruled that the Minister did not offer a good explanation for raising the fine imposed for violation of this administrative requirement. It appears, from the underlying parliamentary documents, that the increase in Wav fines was aimed at preventing illegal employment. Fines for violation of articles of the Wav that targeted this (such as Article 2) could therefore be increased. Fines for administrative violations, such as those in Article 15, could not be raised using the same argument because they are not directly related to preventing factual illegal employment.
Reduction of the fine
The Council of State reduced the fine to €1,500 in this case; the amount before it was raised in 2013. This decision applies to all cases in which a fine of €2,250 was imposed for a violation of Article 15.This means that employers will receive a reduction of €750 per fine. Exactly what the legislator will do about the fine in response to this ruling is still unclear. In any case, the amount, which can be found in the Beleidsregel boeteoplegging Wav 2016 (2016 Penalty Policy of Wav) needs to be revised and lowered.
You can read the complete ruling here (in Dutch). For more information about the Inspectorate for Social Affairs and Employment (SZW) and fines, please contact Bram van Melle.
(Judgement: ECLI:NL:RVS:2016:3340)
