Posted workers - Notification employees from abroad in the Netherlands (WagwEU)

The EU Directives for posted workers: 

The position of posted workers is regulated at EU level.

The legal framework is provided by

• Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, and
• EU Directive 2018/957 of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, and
• Directive 2014/67/EU of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System. 

The Directive 2018/957 of 28 June 2018 amending Directive 96/71/EC, provides for more extended rights for posted workers and is to be implemented by the EU and EER Member States by 30 July 2020.

What is a posted worker ? 

A "posted worker" is an employee who is sent by an employer of an EU or EER member state to carry out a service in the Netherlands on a temporary basis, in the context of a contract of services, an intra-group posting or a hiring out through a temporary agency. 

Posted workers are different from EU mobile workers in that they remain in the host Member State only temporarily and do not integrate its labour market whilst their employment is usually regulated by the labor laws of the country of origin. 

The EU rules for posted workers:

EU law defines a set of mandatory rules regarding the terms and conditions of employment to be applied to posted workers, to guarantee that these rights and working conditions are protected throughout the EU and to ensure a level-playing field and avoid "social dumping" where foreign service providers can undercut local service providers because their labour standards are lower.

The EU rules establish that, even though workers posted to another Member State are still employed by the sending company and subject to the laws of that Member State, they are entitled to a set of core rights in force in the host Member State, which include:

• 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 between men and women.

The employee may always apply the "most favourable regime": the laws of the host country do not apply when the working conditions applicable to the worker in accordance with the rules of the sending Member State are more favourable. 

The Dutch rules for posted workers (WagwEU)

The WagwEU is in fact an implementation of the aforementioned EU Directives which apply to posted workers assigned within the EU and the EER. 

The WagwEU is adopted per 1 June 2016, but did effectively not enter into force untill 1 March 2020 with the launch of the online notification platform. 

What does the WagwEU provide for ? 

The WagwEU provides for: 

1. the legal obligation for qualifying foreign Service Providers in the EU and EER to register in the Netherlands and file notifications about qualifying posted workers assigned to the Netherlands;
2. the right for posted workers assigned to the Netherlands to claim certain core employment law benefits available in the Netherlands;
3. the legal obligation for qualifying Service Providers to keep an administration in the Netherlands of data and documents relating to the (notified) posted workers;
4. the legal obligation for qualifying Service Providers to appoint a "contact person" in the Netherlands to maintain the communications with the Dutch authorities regarding the execution of the WagwEU;
5. the regulatory framework including the possibility to levy penalties for the proper execution and enforcement of the WagwEU.

Rights for the posted worker:

Employees from EU or EER countries who are assigned to work in the Netherlands are entitled to the main terms of employment that apply in the Netherlands. This includes amongst others the right to: 

• the minimum wage;
• sufficient rest hours;
• safe working conditions;
• equal treatment of men and women; and
• a minimum number of paid days off.

In sectors where a Collective Labor Agreement (CAO) applies, posted workers are also entitled to the ‘hard core’ of the terms of employment from these CAO's.

The employers of posted workers must monitor the adherence to these terms in order to comply with the WagwEU obligation.

Who has the the obligation to notify ? 

The obligation to notify rests on Service Providers based in another EU/ EER member state which:

1. provide services in the Netherlands temporarily with their own foreign personnel
2. second foreign employees temporarily to a member of the Group in the Netherlands
3. make temporary agency workers available in the Netherlands (for foreign temporary employment agencies).

Service Providers typically include employers, but can also include independent contractors/ self-employed persons. 

The duty to notify applies only to self-employed persons if they work in certain designated sectors.

If a self-employed person is working in one of the following sectors (or sub-sectors of these sectors) he/she is likely to have the obligation to notify:

• construction
• cleaning
• food industry
• metal
• care
• window-cleaning
• agriculture and horticulture.

The sector in which the self-employed person works is assessed on the basis of the following criteria:

• the nature of the work actually carried out
• the activities and work as described in the assignment contract, service agreement or transport contract
• the SBI code assigned to the self-employed person on the basis of their economic activities (SBI is the Dutch version of the General Industrial Classification of Economic Activities within the European Communities, or NACE); and
• the location where the work is carried out.

No notification required: 

There is in any case no obligation to notify: 

• for independent contractors/self-employed who fall outside the designated categories 
• for companies based in the Netherlands and their employees working on the basis of a Dutch contract
• for employees seconded within the Netherlands
• for service providers in certain categories of the transport sector
• for employees working in the public administration sector, public services or extraterritorial organisations
• for employees performing defined "incidental work" in the Netherlands 

Incidental work for which no notification is required includes: 

• Initial assembly or the first installation of goods, carried out by qualified or specialised workers, provided that this is an integral part of a contract for the supply of goods and is necessary for taking the goods supplied into use and the duration of the work does not exceed eight days, unless it concerns work in the construction sector.
• Urgent maintenance or repairs to tools, machinery or equipment supplied by the employer abroad to the client or company in the Netherlands, for whom repairs or maintenance is carried out, or workers who install or modify the software provided by the employer abroad or who provide instructions on the use of that software, provided that their stay is necessary for these activities and does not exceed 12 consecutive weeks within a 36-week time period.
• Attending academic conferences, provided that the stay does not exceed five days per calendar month.
• Conducting business discussions or concluding agreements with companies or institutions, provided that the stay does not exceed 13 consecutive weeks within a 52-week time period.
• Employees who are employed as correspondents in the service of a publicity medium which has its head office outside the Netherlands.
• Participants in international sports competitions and their regular personal assistants, provided that their stay does not exceed six consecutive weeks within a 13-week time period.
• Artists and musicians and their regular personal assistants who give a performance, and visual artists, curators or restorers, provided that their stay does not exceed six consecutive weeks within a 13-week time period.
• Guest lecturers who work for a Dutch institute of higher education.
• Researchers and members of a research team employed by a university or research institution who take part in an academic program of a university or research institution, provided that their stay does not exceed 13 consecutive weeks within a 52-week time period.

Special rules for notification: 

Special rules apply to the transport sector: most types of transport are excluded from the duty to notify, whereas for other forms of transport (specifically freight transport by road) the notification can be done through a one-year notification. 

Qualifying small businesses (1-9 employees) and self-employed persons who are based within a 100-kilometer radius of the Dutch border and who work regularly in the Netherlands, can suffice with a one-year notifiation, unless it concerns parties in the construction or the temporary employment sector.

As from when is the notification required ? 

The notification obligations of the WagwEU apply as of 1 March 2020. 

Assignments in relation to projects that started before 1 March 2020 do in essence not have to be notified, and there is a leniency period for penalties up to September 2020.

What is the deadline for a notification? 

The notification must always be done before the work is actually performed in the Netherlands.

Check on notification by Service Recipient (client) 

The recipient of the service (client) for which a notification is required is obliged to check whether a notification has been filed and review whether this notification is correct. The client will be notified when a foreign Service Provider has notified the arrival of employees assigned to client.

The client can inspect and review the notification online. This notification gives the details of the self-employed person or the company and the employees who are coming to work for the client: the address/place where the work will be performed, a description of the work, and how long it will take.

If there are any errors in the notification, the client must make a notification in the portal and request the foreign Service Provider to make amendments.

How is the information to be provided - the online notification portal:

The notification must be done on a dedicated online notification portal:

https://english.postedworkers.nl/online-notification-portal

The legal representative of the Service Provider (individual) must first register him/herself and his/her company through a secured registration procedure. It is not possible to have this done by a company or legal entity. 

Which information is to be provided ?

If the foreign Service Provider has the obligation to notify, this will in any case relate to the following data:

• the identity of the person (which must always be an individual) submitting the notification
• the details of the company which this person represents (the Service Provider)
• the contact person for the Service Provider in the Netherlands
• the identity of the client (Service Recipient)
• the sector in which the activities will be carried out in the Netherlands (on the basis of so-called SBI codes) 
• the address /place where the work will be performed
• the expected duration of the work
• the identity of the person responsible for payment of salary/wage
• the identity of the employees coming to work in the Netherlands
• the presence of an A1 declaration or other type of evidence that shows where the social security contributions are paid for the employee(s), because of the contribution for the relevant social security scheme.

What happens with the information provided ?

The information provided will be received by the Inspectorate SZW (Social Affairs and Employment), the Dutch Social Insurance Board (SVB) and the Dutch Tax and Customs Administration, which can use the information provided to enforce applicable Dutch law, including the specific sections of Dutch labour laws (amongst which the WagwEU), Dutch social insurances and Dutch tax laws. 

The Inspectorate SZW checks whether employers abroad, self-employed persons and clients are complying with the WagwEU. Along with the Dutch Tax Administration and the SVB, the Inspectorate SZW has direct access to all notifications. 

Also the Dutch Immigration and Naturalisation Service (IND) can request information from the notification portal if a posted foreign national requires a residence permit, and finally the social partners can request information from the notification portal to check compliance with collective labor agreement (CAO) conditions.

Enforcement and penalties: 

Non-compliance with the obligations created by the WagwEU of the Service Provider (employer or self-employed), the client or other parties falling under the scope of WagwEU, can be sanctioned with penalties.

The Inspectorate SZW monitors the execution of the WagwEU and the compliance with Dutch labour laws.

If a check by the Inspectorate SZW reveals non-compliance with the WagwEU or Dutch labour laws, penalties may be imposed. The social partners monitor compliance with the provisions in the CAO's. 

If a check of other information or a visit to the workplace reveals that the arrival of the foreign employees has not been properly or timely notified, penalties may be imposed on both the employer and the client.

Our services with regard to the execution of the WagwEU:

We offer a wide range of services with regard to the compliance relating to posted workers assigned to the Netherlands (WagwEU).

This can include amongst others the following: 

• confirmation of notification requirements under Dutch law for specific Service Providers 
• confirmation of implications for Dutch labor law and tax law per category of posted workers
• confirmation specific administration requirements 
• registration as contact person in the Netherlands for the Service Provider, and in this capacity respond to questions and request of the authorities and maintain communications with the authorities on behalf of Service Provider 
• set up and manage an online portal for the set up, maintenance and storage of the legally required administration for the notified posted workers.

If our are interested in our services we will gladly prepare a concrete service and fee proposal for you.