Posting of workers to the Netherlands is regulated by Directives 96/71/EC, 2014/67/EU and 2018/957/EU. These Directives set requirements and obligations for EU-based Companies sending their employees to the Netherlands. Companies must follow most of the requirements since before the start date of the secondment.
Prior obligations when posting workers to the Netherlands
A company posting its employees to the Netherlands must first submit a posting declaration to the Dutch Authorities. Companies can use the Institutional Website for this first requirement.
The sending company must provide a written or electronic copy of the notification to the host company. This before the beginning of the work activity in the Netherlands.
One of the basic requirements is to comply with working and salary conditions in the Netherlands, following the applicable CBA.
The sending company must also appoint a contact person to act as an intermediary or liaison with the Authorities. This contact person shall be available on Dutch territory. The contact person is a fundamental role, since it constitutes a direct contact in case of requests by the Authorities.
The provisions regarding posted workers apply in summary, to employees performing services such as:
- Provision of Services to Clients in The Netherlands: Maintenance – Installation – etc.
- Provision of Services to Subsidiaries of one’s own Group in The Netherlands: Auditing – Management etc.
- Temporary workers
Self-employed workers posted to the Netherlands
Self-employed workers are not technically employees. Therefore, they do not necessarily fall under the scope of the EU Posting of Workers Directive.
However, many of the implementing countries require self-employed workers to submit their posted worker notification. This also included the Netherlands, under certain conditions.
What to do in case of third-country nationals
Companies should pay much attention in case of posting third-country nationals to the Netherlands.
In this case, in fact, posting conditions could vary substantially, so it is advisable to carry out a case-by-case analysis.
A requirement to check, for example, is if the third-country national needs a work permit for the host country.
Documents storage and archiving
During the assignment, the posting company must keep all the documents relative to each assignment. This usually includes employment contracts, pay slips, signed time sheets, A1 Certificate and proof of payment. These documents must be available and stored at the place of work at all times.
Dutch Authorities, in fact, may require said documents during the posting, or even after it for up to 5 years.
If requested by the Authorities, the company must be able to provide the documentations translated into the official language.
Fines and sanctions in case of non-compliance with Dutch posted workers’ regulations
The Dutch Labour Inspectorate has the right to fine foreign companies or self-employed persons for non-compliance with national posting provisions.
A company that does not report, in writing or electronically, a posting of its employees on Dutch territory as indicated by the regulations in force faces sanctions between €1,500 and €4,500.
Failure to comply with the obligation to archive and store documents at the workplace is punished with a fine of €8,000.
Penalties may increase or decrease depending on the specific case in relation to factors that might increment the severity of the infringement, such as the number of employees involved, the duration of the violation, and the eventual recurrence of the violation.
For example, a fine may increase by 100% if Authorities detect further violation within the previous five years, thus falling withing the case of recurrence of the violation, consisting in the failure to comply with the same legal obligation.
Failure to adequately respond to the formal requests presented by the Dutch Labor Inspectorate in case of inspection may result in fines of up to € 6000 for companies and € 3000 for sel-employed workers.
Additional fulfillments when posting workers to the Netherlands
In accordance with Regulation 883/2004, the posting company must apply to the competent social institution for a A1 certificate for posted employees. Companies should make sure if posting non-EU workers to the Netherlands needs additional fulfilments.
For example, a non-EU worker on assignment to the Netherlands for more than 3 months requires a residence permit.
If a posting lasts longer than 12 months, posted workers are entitled to all employment conditions under Dutch law, with the exception of the rules governing the procedures, formalities and conditions for signing and terminating the employment contract, which include non-competition clauses and pension rules.
The 12-month period can be extended to 18 months upon justified notification.
In this case, the company must make the notification within the last three months of the intended period of posting. For example: in case of a 9-month posting, the company can notify the extension from the seventh month of the posting.
If the posting is extended for a period longer than 18 months, the posted worker will be entitled to all mandatory working conditions from the 13th month of posting. Only if the extension is limited to a total duration of 18 months will the posted worker be entitled to all mandatory working conditions as from the 19th month.
The notification of the extension must be made using the same online portal as for the notification of a transnational posting of workers prior to the posting.