The regulations are different for temporary agency workers posted to the Netherlands: they are entitled to additional terms of employment from day one, and there are additional obligations for their employers.
The hard core of terms of employment of Dutch labour legislation comprise:
These terms of employment are set out in Dutch labour legislation, i.e. the Minimum Wage and Minimum Holiday Allowance Act, the Working Hours Act, the Working Conditions Act and the Equal Treatment Act.
In sectors where a universally binding collective agreement is applicable, posted workers are also entitled to universally binding conditions from the collective agreement that relate to the following issues:
* Remuneration does not include the following: contributions to supplementary occupational pension schemes, social security claims above the statutory entitlements and allowances paid out as reimbursement of costs actually incurred in relation to the posting, such as travel, meal and accommodation costs.
The collective agreement to be applied by the employer abroad is determined on the basis of the scope of the collective agreement. In making this assessment, the employer abroad needs to consider only his activities in the Netherlands. Activities outside the Netherlands are not taken into consideration. The applicable collective agreement will usually be the collective agreement of the business sector in which the employer abroad carries out most of his activities in the Netherlands.
On the website of the Ministry of Social Affairs and Employment, you will find an overview of all the collective agreements. Translations are available of the collective agreements for the business sectors in which most postings to the Netherlands take place.
After 12 months, posted workers are entitled to all the Dutch terms and conditions of employment of Dutch labour legislation and of universally binding collective labour agreement conditions, with the exception of conditions about supplementary occupational pension schemes and conditions about entering into and terminating a contract of employment. This is known as the ‘expanded hard core’.
If the posting initially lasts for a maximum of 12 months, but is extended to a maximum of 18 months due to circumstances, the employer abroad may choose to apply only the ‘hard core’ of terms of employment for those 18 months. The ‘expanded hard core’ is then applicable from the 19th month. For postings that commenced before July 30, 2020, this extension to 18 months applies automatically. For postings that commenced on or after July 30, 2020, an application for this extension may be submitted through the online notification portal. When the employer abroad extends a posting of a maximum of 12 months to a maximum of 18 months in the online notification portal, the option to extend the period during which the ‘hard core’ applies can be ticked. The service provider thus declares that the duration of the posting in the previous notification is extended to a maximum of 18 months.
If the employer abroad replaces a posted worker with another posted worker who carries out the same work in the same place, then this is regarded as a single posting. For example, if the first worker is posted to the Netherlands for 8 months and is then replaced by a new posted worker, then the new worker is entitled to the expanded hard core after 4 months.
Besides the WagwEU, the Placement of Personnel by Intermediaries Act (Waadi) is also applicable to posted temporary agency workers. The Waadi is applicable when a business makes workers available in the Netherlands, to work under the supervision and management of the Dutch service recipient. These workers are entitled to some of the terms of employment applicable to similar employees of the service recipient. It concerns the following terms of employment, which also apply to employees of the service recipient or similar employees (in the relevant business sector):
Under certain conditions, there may be deviation from these terms of employment in collective agreements, as is the case in the Collective Agreement for Temporary Agency Workers. In such cases, the employer abroad will offer his posted temporary agency workers all the conditions from this universally binding collective agreement from day one, with the exception of conditions about supplementary occupational pension schemes and conditions about entering into and terminating a contract of employment.
The service recipient is obliged to inform the employer abroad of the terms of employment that apply in his organisation, prior to the commencement of the posting.
The employer abroad of the posted temporary agency worker remains responsible for the posted temporary agency worker receiving the correct terms and conditions of employment, even if the worker is sent on to a third party by the service recipient. The service recipient is obliged to inform the employer abroad in advance of sending on the posted temporary agency worker.
Under the Waadi, a number of additional obligations are also applicable. For instance, the foreign temporary employment agency or other business making workers available in the Netherlands must register with the Dutch Commercial Register.
Reimbursements and allowances paid to workers as reimbursement of costs actually incurred in relation to the posting, such as travel, meal and accommodation costs, cannot be regarded as part of the legal minimum wage or the remuneration that applies under universally binding collective agreement conditions. These allowances must be paid in addition to the obligatory remuneration.
The employer abroad must reimburse these costs in accordance with the national law and/or the practice in the home country that applies to the contract of employment between the employer and his posted workers. For example, this may be the law or the applicable collective agreement in the home country.
The employer abroad must clarify whether parts of an allowance, and if so which parts, will be paid for these costs incurred in relation to the posting. If this is not clear, the whole allowance will be regarded as reimbursement, and this whole allowance will therefore not be counted as minimum wage under the law or the applicable collective agreement.
If the terms and conditions of employment are more favourable in the posted worker’s home country, then they are applicable. This applies to each separate term of employment. For example, if only the remuneration in the home country is more favourable, then the term of employment for remuneration in the home country will apply, but the Dutch rules regarding rest hours, holidays, safe working conditions and equal treatment, etc. will apply.
An exception is applicable to posted workers in the transport sector. You can find information about the terms of employment to which posted workers in the transport sector are entitled here.