Employers from EU countries who temporarily come to work with their staff in the Netherlands are subject to the Employment Posted Workers in the European Union Act (WagwEU). This law states that employers are obliged to grant certain minimum working conditions to staff who come to work temporarily in the Netherlands. The SZW Inspectorate checks this. To simplify this check, the WagwEU contains a notification obligation.
When does the notification obligation start?
From March 1st, 2020, employers from EU/EEA member states and Switzerland must notify their activities and the arrival of employees who are going to work temporarily in the Netherlands in advance. They do this via the Dutch online notification portal.
Employers can submit their temporary assignments starting on or after March 1st, 2020 from February 1st, 2020.
What does the notification obligation mean for the Dutch client?
The client must check whether the foreign employees (and some self-employed persons) have been reported and whether the notification is correct. In the event of errors, the client must adjust this in the online notification portal.
To whom does the notification apply?
The notification obligation applies to all employers from the European Economic Area (EEA) and Switzerland with employees who are going to work temporarily in the Netherlands. This involves:
- pure secondment: self-employed and employers who come to the Netherlands with their own staff to carry out a project or service here;
- intra-group secondment: multinational companies that second employees to an establishment or group company in the Netherlands;
- seconded temporary employment: foreign secondment and temporary employment agencies that make workers available in the Netherlands.
Expansion: self-employed in ‘high risk sectors’
The notification obligation also applies to self-employed persons in designated high-risk sectors. High-risk sectors include: agriculture, industry, construction, transport, catering and healthcare.
Simplified reporting: one report per year
The Dutch government has determined that, under certain conditions, only one report per year needs to be made by the following parties:
- Self-employed persons registered in the Trade Register (or a similar register in another country), who are active in “high-risk sectors”, are established within 100 kilometers of the Dutch border, have performed at least three transnational services in the previous calendar year or have already completed a WagwEU annual registration and are not active in the construction sector.
- Service providers, with a minimum of 1 and a maximum of 9 employees, registered in the Trade Register (or a similar register in another country), which are established within 100 kilometers of the Dutch border, have performed at least three transnational services in the previous calendar year or have already completed a WagwEU annual registration and are not active in the construction sector or the temporary employment sector.
- Self-employed and service providers active in the transport of goods by road.
Exemption from notification obligation
Due to the practical feasibility and administrative burden, an exception has been made to the notification obligation for some categories of work. If only activities are performed in the Netherlands that fall into these categories, the employer does not have a notification obligation. This includes the following categories:
- employees who perform initial assembly or installation of delivered goods during a period of no more than 8 days (this exception does not apply in the construction sector);
- employees who carry out urgent maintenance or repairs or perform software installations during a maximum period of 12 consecutive weeks within a period of 36 weeks;
- business meetings during a period of no more than 13 consecutive weeks in 52 weeks.
It is remarkable that the intention is to link up with the period for assessing whether a work permit is required: a period of 13 weeks (not consecutive) within 52 weeks. It is to be hoped that the latter was the intention of the legislator and that up to a maximum of 13 weeks in a 52-week period no report needs to be made for business meetings;
- various other activities such as attending scientific conferences (maximum 5 days per calendar month)
- various types of employees such as researchers, international athletes, artists and musicians giving a performance, visual artists, curators or conservators (maximum 6 consecutive weeks).
- the transport sector, with the exception of goods transport by road (transit traffic by road is excluded)
Administrative obligations
Employers from EU countries with temporarily seconded staff in the Netherlands must comply with a number of administrative obligations:
- The obligation to have documents, such as payslips, working hours summaries and receipts available in the Netherlands at the workplace of the seconded employee (or directly digitally available);
- Obligation to provide information: providing all information to the Inspectorate SZW which is necessary for the reinforcement of the WagwEU (upon request);
- The obligation to appoint a contact person in the Netherlands for the contact with the Inspectorate SZW.
- The notification obligation as of March 1st, 2020.
Fines and sanctions
When the WagwEU is not observed, the Inspectorate SZW may impose a fine upon the foreign employer who carries out the work here in the Netherlands. The fine per violation amounts to €12,000 and may be moderated or increased under certain circumstances. The Dutch client can also be fined if he has not fulfilled his obligation to check.
Source: Ministry of Social Affairs and Employment
