OrganizedFlex: WagwEU (NL)

The WagwEU sets out the terms and conditions of employment that apply to employees of foreign employers based in the European Union, Norway, Iceland, Liechtenstein (EEA) or Switzerland working temporarily in the Netherlands. In addition, the WagwEU contains measures that improve enforcement in cross-border situations.

When does the WagwEU apply?
The WagwEU applies to secondment by foreign employers from other EEA countries or Switzerland who come to provide a service or temporarily employ staff in the Netherlands. There are three categories of secondment within the WagwEU:

1. Pure service provision: staff continue to work under their own management and supervision, e.g. outsourcing;
2. Secondment within multinational groups;
3. Temporary employment: the employees provided work under the direction and supervision of the service recipient (hirer).

Working with a self-employed person abroad also falls under pure service provision within the WagwEU.

Compulsory employment conditions
Foreign employers are obliged to grant certain minimum employment conditions (hard core) under labour law to staff coming to work temporarily in the Netherlands. If a foreign employer starts working in a sector in which a CAO that has been declared generally binding applies, the hard-core employment conditions from this CAO also apply. Seconded employees are entitled to the collective labour agreement provisions that have been declared generally binding and relate to:

a. the maximum working time and minimum rest periods;
b. the minimum number of holidays;
c. minimum wages for various items
d. conditions for the posting of workers;
e. health, safety and hygiene at work
f. protective measures relating to the terms and conditions of employment of children, young persons and workers during pregnancy or after childbirth
g. equal treatment of men and women, as well as other provisions on non-discrimination.

These working conditions are further elaborated and explained in each collective bargaining agreement.

If labour laws are not complied with, the Inspectorate SZW can impose a fine. If hard core provisions of the collective agreement are not complied with, social partners can file a claim.

Administrative obligations

Duty to report
Service providers (employers) and self-employed persons from the EEA and Switzerland who come to work temporarily in the Netherlands must register in advance with the online reporting point for foreign workers.

The service recipient, often the contractor, hirer or client of the self-employed worker, must check whether a notification has been made by the service provider and whether it is correct. The controlling company must receive an automatic notification from the online portal (Posted Workers portal) if the notification has been made. If no notification or an incorrect notification has been made, the controlling company (service recipient) must report it online.

Employees
The obligation to have certain documents available at the workplace:

identification;
employment contracts;
pay slips;
working time statement;
A1 forms;
proof of payment of wages paid;

Extra for third-country nationals

For third-country nationals, they must meet all the conditions set out in the Vander Elst exemption.

These documents must be available in writing or electronically for up to five years after termination of employment. The documents must be available in Dutch, English, German or French.

Contact person
The obligation to designate a contact person in the Netherlands as the point of contact for the Dutch Labour Inspectorate.

Information obligation
The obligation to provide, at the request of the Labour Inspectorate, information that the Inspectorate needs to be able to supervise.

Enforcement by inspection SZW

Obligations of service providers and service recipients
The Inspectorate SZW checks whether service providers (employers) and service recipients (principals) comply with the WagwEU. Together with the Tax and Customs Administration and the Social Insurance Bank (SVB), the Inspectorate SZW has direct access to all reports. Social partners can also request data from the hotline when inspecting compliance with collective agreement provisions. Does an inspection reveal non-compliance with the duty to report and/or the duty to inspect? Then the reporting party (service provider) but also the inspection party (service recipient) can be fined.

Service providers can use any employee when performing services in another EU member state, including employees who are not nationals of an EU member state.

If you would like more information on the WagwEU for service providers (employers), please contact us.

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