Since 1 March 2020, a notification duty applies to companies from other EEA countries (all EU member states and Norway, Liechtenstein and Iceland) or Switzerland that send employees to work in the Netherlands on a temporary basis. In some sectors, this duty to notify also applies to foreign Self-Employed Workers. The duty to notify applies to temporary services. Now that international postings have resumed after Covid, we hereby provide you with a refresher of this duty to notify.

The duty to notify is based on the EU Posting of Workers Directive (and related enforcement directive) that is implemented in the Netherlands in the Posted Workers in the European Union Working Conditions Act (WagwEU).

The main objectives of this directive and law are to prevent exploitation of cheap labour and to guarantee minimum working conditions in the country where the work is performed.

Service providers and service recipients

The WagwEU distinguishes between Service Providers, Self-Employed Workers and Service Recipients. Foreign employers (Service Providers) and Self-Employed Workers in some sectors must specify in the Dutch online notification portal the type of work they are going to perform and when. Foreign employers must also report the arrival of any employees.

A foreign employer is considered a Service Provider in the following cases:

  • if the employer temporarily sends its own staff to the Netherlands to perform a service;
  • if the employer temporarily seconds employees from a multinational company to its own branch in the Netherlands or;
  • if the employer is a foreign temporary employment agency and sends employees to work in the Netherlands temporarily.

Foreign Self-Employed Workers working in construction, cleaning, food industry, metal, care, window cleaning or in agriculture and horticulture are required to register. Additional rules apply to the transport sector.

The Service Recipient is the person the Service Provider intends to work for in the Netherlands and with whom the Service Provider has concluded a service contract (contract for work or contract for services).

Duty to notify

Notification is done by the Service Provider through the online notification portal for foreign employees. The foreign employer must report the following:

  • the identity of the person responsible for the notification;
  • the company details of the foreign employer;
  • the details of the contact person in the Netherlands (within the meaning of article 7 of the WagwEU);
  • the identity of the Service Recipient;
  • the sector in which the foreign employer will perform the work in the Netherlands;
  • the address of the workplace;
  • the expected duration of the work;
  • the identity of the person responsible for payment of wages;
  • the identity of employee(s) that will be temporarily performing work in the Netherlands; and
  • the presence of an A1 certificate or other type of proof showing where social contributions are paid for the employee(s), because of the contribution to the applicable social security scheme.

Employees need not be reported if the Service Provider has a company in the Netherlands and if the employees work under a Dutch employment contract.

Reporting is not necessary either for employees performing certain types of occasional/seasonal work. These include, for example, business meetings, urgent maintenance or repairs or attending conferences.

One-year notification

In some cases, a limited duty to notify applies (one-year notification). In that case, the Service Provider only needs to report once a year. This arrangement applies in the following cases:

  • the employer has a small business (0-9 employees) with a duty to notify, works more often in the Netherlands and is based within a 100-kilometre radius of the Dutch border;
  • the Self-Employed Worker has a duty to notify, works more often in the Netherlands and is based within a 100-kilometre radius of the Dutch border;
  • if the employer/Self-Employed Worker works in goods transport by road.

Duty to verify for Service Recipients

Dutch companies hiring a company or a Self-Employed Worker with a duty to notify from a country within the EEA for a temporary assignment in the Netherlands are obliged to check whether the notification has been entered correctly in the notification portal. They will receive a notification once the foreign Service Provider or Self-Employed Worker has reported their arrival in the Netherlands and can view and verify the notification online. If the notification contains any inaccuracies, they can report this in the online notification portal and ask the foreign Service Provider or Self-Employed Worker to correct the information.

Contact person

A contact person is the point of contact for the foreign employer (Service Provider) in the Netherlands and must therefore be located in the Netherlands to answer questions from the Dutch Labour Inspectorate regarding the posting.
Furthermore, a contact person must be authorised to send and receive documents related to the posting. Only natural persons can be contact persons. A posted employee may act as a contact person if they can be reached by the Dutch Labour Inspectorate throughout the assignment in the Netherlands.

Administrative obligations

Employers from countries in the EEA and Switzerland that engage temporarily posted personnel in the Netherlands must comply with a number of administrative obligations:

  • The obligation to have certain documents present at the Dutch workplace of the posted worker (or readily available in digital form). These include
    employment contracts, pay slips, working hours statements, A1 forms and proofs of payment. These documents must be available in Dutch, English, German and/or French. They may be available in digital form or in writing.
  • Obligation to provide information: the obligation to provide the Social Affairs and Employment (SZW) Inspectorate with all information necessary for the enforcement of the WagwEU.
  • Obligation to designate a contact person in the Netherlands who can be contacted by the SZW Inspectorate and who acts as a point of contact (this can also be a posted employee).
  • Duty to notify: as from 1 March 2020 foreign employers are obliged to report their activities in the Netherlands through the Dutch online notification portal for foreign employees.

Check

The Dutch Labour Inspectorate checks whether employers and clients comply with the WagwEU. Jointly with the Tax and Customs Administration and Social Insurance Bank (SVB), the Dutch Labour Inspectorate has direct access to all notifications. The Immigration and Naturalisation Service (IND) may also request data from the notification portal to carry out its duties. Social partners may also request data from the notification portal when checking compliance with collective labour agreement provisions. If an inspection reveals that the arrival was not reported in advance or was reported incorrectly, both the Service Provider and the Service Recipient may be fined.

Fine

A Service Provider or Service Recipient who fails to comply with the administrative obligations under the WagwEU risks a fine. The amounts of the fines are set out in the Policy Rule on Imposing Fines under the Posted Workers in the European Union Working Conditions Act:

  • A foreign employer risks a fine of €1,500 if the employer posts fewer than 10 employees in the Netherlands. The more posted workers, the higher the amount of the final fine(s). In the case of 10 to 20 employees, the fine amounts to €3,000. From 20 employees, the fine amounts to €4,500.
  • In the case of failure to comply with the administrative obligations, the employer risks a fine of €8,000.
  • In the case of a Self-Employed Worker, the fine is reduced by 50%.
  • A Service Recipient who has failed to comply with the duty to verify risks a fine of €1,500. If the Service Recipient is a natural person, the fine is €750.
  • If the obligation to provide information is not complied with, the Service Provider will be fined €6,000.
  • The Policy Rule includes situations under which the fine is increased by 50%. Furthermore, based on this Policy Rule and specific situations specified therein, the fine may be reduced by 25%, 50% or 75%.

Would you like more information?

Do you have questions about this scheme or would you like more information? Please contact your regular RSM consultant.