Posting Report Netherlands

Transcription

1 Posting Report Netherlands (EN - Original language =NL) 5/2014 Initiative financially supported by the European Community in the framework of 1 programmes and actions in the social and employment sectors Grant Agreement VS/2014/0022

2 This initiative was co-financed by the European Commission within the framework of social and employment programmes. The text for the website was drafted by Mrs J. (Joyce) van Dongen, secretary to parties to the Collective Agreement (CAO) for the Construction Industry and national expert for FIEC (European Construction Industry Federation) and EFBWW (European Federation of Building and Woodworkers). The text has been approved by the national social partners involved: Bouwend Nederland, FNV Bouw and CNV Vakmensen. The information in this report reflects the state of affairs on 1 April No rights can be derived from the contents of this document. EFBWW FIEC Posting report The Netherlands 09/ EN 2

3 1. Mandatory documents and formalities 1.1 Introduction Employees who are posted temporarily to the Netherlands and their employers have to deal with various documents and formalities. Which documents and formalities apply to individual employees is determined by their nationality. This will be discussed in the following sections of this chapter. The nationality of employees does not affect the employments conditions they are entitled to when temporarily carrying out construction or infrastructure work in the Netherlands. Their employment conditions are determined by the European Directive on the Posting of Workers, the Dutch laws and regulations that are based on this Directive and the applicable Dutch Collective Agreement (cao). The chapters 2-6 of this document deal with the employment conditions these employees are entitled to by virtue of the CAO for the Construction Industry. Some of the terms that are important in this respect are explained in chapter 7. Among other things, attention is given to the financial liability with regard to posting and the possibilities to report employment malpractices. In chapter 8 you will find some useful links to relevant organisations and documents. 1.2 General information General information for foreigners who come to the Netherlands to work and their employers can be found at the following sites: This Dutch government immigration website contains information about licences and visa, work, social security, taxes, education and importing foreign cars. It also contains some links to authorities that are in charge of these matters. Languages: Dutch and English. / This is the general website of the Dutch national government, which provides detailed information on, among other things, immigration, work, housing, health care, education, jurisdiction and taxes. This website also contains specific information on: o foreigners who (intend to) work in the Netherlands: Dutch text: English text: o foreign employees who are posted to the Netherlands by their employers: Dutch text: English text: EFBWW FIEC Posting report The Netherlands 09/ EN 3

4 For citizens of EU countries, Switzerland, Liechtenstein, Norway and Iceland who want to come and work in the Netherlands, the government brochure 'New in the Netherlands; European labour migrants' provides general information. This brochure is available in many languages at The above-mentioned sources of information are not aimed specifically at foreign employees who are temporarily posted to the Netherlands. Therefore, additional specific information is included in the following sections about social insurance, medical care and taxes with regard to the temporary posting of workers. 1.3 Employees from EU member states, Switzerland, Liechtenstein, Norway and Iceland Social insurance: A1/E101 document In case of temporary posting from abroad (for a maximum period of 24 months), the social security legislation of the country of origin may continue to apply, subject to certain conditions. In such cases, posted employees continue to pay social security premiums in their country of origin and remain insured in that country. For this purpose, employees need to apply for an A1/E101 document, which is a certificate issued by the social security authority of the country of origin, on the basis of which employees are exempt from payment of social security contributions in the Netherlands. The addresses of the social security authorities in the countries concerned can be found at: (all EU languages). Employees should always carry the A1/E101 document on their person at their place of work in the Netherlands. If employees with an A1/E101 document are unable to work due to illness during their posting in the Netherlands, they must report this immediately to their employer and, within three days, to the Dutch social security agency UWV WERKbedrijf, international posting department, telephone (employees) or (employers). Medical care EHIC or S1/E106 document Foreign employees who are temporarily posted to the Netherlands are required by law to take out Dutch health insurance covering the costs of basic medical care. This requirement does not apply if they have an A1/E101 document (Certificate concerning applicable social insurance legislation). In that case, posted employees remain insured in their country of origin against medical expenses. If they want to use medical care in the Netherlands, they can ask the health insurer in the country of origin to provide them with one of the following documents: EHIC: European Health Insurance Card. Information on how to apply for the card and how to use it can be found at (all EU languages). An EFBWW FIEC Posting report The Netherlands 09/ EN 4

5 EHIC card entitles employees who are temporarily staying in the Netherlands to necessary medical care. The costs will be paid by the Dutch health insurance company Agis. See: nden_en_zwitserland (languages: Dutch, English and German). S1/E106 document: This document is intended for employees who are staying (living) in the Netherlands for a longer period of time. Employees with an S1/E106 document may qualify for a 'treaty policy' in the Netherlands. With such a policy, they are entitled to the same medical care as Dutch insured persons. This also applies for co-insured family members who are living in the Netherlands. This regulation is implemented by the Dutch health insurance company CZ. Application forms for the CZ Treaty Policy are available from CZ, international team, telephone For more information: Posted employees who do not use an EHIC or S1/E106 document are required to pay their medical expenses in the Netherlands themselves. They can ask their own health insurer to compensate these expenses. Taxes If no regulations had been made between countries, employees who are working in another country would pay tax on their wages twice: once in the country of work (tax on wages and salaries) and once in the country of residence (income tax). In order to prevent this, double tax treaties have been concluded. Most tax treaties stipulate that the country of work (in this case the Netherlands) is entitled to levy taxes on the salaries and wages that are earned there. There is an exception to the country of work principle: the so-called 183-day regulation. By virtue of this regulation, the employee's country of residence is entitled to levy tax if all of the following conditions are met: The employee's stay in the country of work does not exceed 183 days during a specific period. This period varies among countries that have signed double tax treaties. Usually this is a period of approximately one year. The wages are not charged to the profit and loss account of any permanent establishment, e.g. a branch, of the employer in the country of work. The employer who is paying the wages is not established in the country of work and the wages are not paid by or on behalf of a 'material employer' in the country of work. Sometimes it is difficult to determine whether the hirer can be regarded as a material employer wit regard to employees being posted from abroad. The hirer is regarded as a material employer if all of the following conditions are met: The employee has a power relationship with the hirer: the hirer decides how, when and under what circumstances the employee performs work. The work is carried out at the expense and risk of the hirer: the financial benefits and drawbacks of the work fall to him. EFBWW FIEC Posting report The Netherlands 09/ EN 5

6 The wages are charged to the country of work: this is the case as soon as the wage costs are charged roughly per unit of time. Most tax treaties include a 183-day provision. In order to properly apply the provision, the relevant treaty must be consulted. Information on tax treaties - in Dutch - can be found at and in English at: Multilingual information on taxes in the Netherlands can be found at For information by telephone: Tax Information Line for Non- Resident Tax Issues (Belasting Telefoon Buitenland): Work permit Citizens of EU countries, Switzerland, Liechtenstein, Norway and Iceland who come and work in the Netherlands do not require a work permit. There are two exceptions to this rule. Employees do require a work permit: if a company established in one of these member states posts employees to the Netherlands who have the nationality of a country to which the free movement of persons does not apply (e.g. a German company that posts a Ukrainian employee). However, a work permit is not required if 'cross-border services' are involved. Such services are subject to compulsory notification. See rschrijdende_dienstverlening/ if they have the Croatian nationality. This (provisional) measure was taken when Croatia entered the EU in Dutch information on this subject can be found at English information can be found at Employees from 'third countries' What are 'third countries'? In this context, 'third countries' are countries other than Switzerland, EU member states and EEA member states. With regard to social security, countries with which the Netherlands has concluded a bilateral social security treaty are not regarded as third countries. Social insurance and medical care Employees who are third country nationals and who are posted to the Netherlands, and who do not have an A1/E101 document 1, fall under the Dutch social security 1 See paragraph 1.3. EFBWW FIEC Posting report The Netherlands 09/ EN 6

7 system. Consequently, social insurance contributions must be paid for them in the Netherlands. More information on this can be obtained from the Social Insurance Bank (Sociale Verzekeringsbank; SVB), International Posting Department, telephone See (several languages). Under the Dutch Health Insurance Act (Zorgverzekeringswet), the employees concerned are obliged to take out basic health care insurance. Information on this can be found at (Dutch) or (English). Taxes Information on this subject can be found in paragraph 1.3. Work permit The employee is not allowed to be posted to the Netherlands until a work permit has been issued for him to the employer/hirer. An exception applies to the employee who has a residence permit/passport sticker with the endorsement 'work is freely permitted'. The work permit is valid for one year. More information on work permits (in Dutch) can be found at and (in English) at Visa, residence permit and combined residence and work permit An employee who intends to work in the Netherlands for a period of three months or less, needs a visa in addition to a work permit (the visa requirement does not apply to all third countries). He applies for the visa in his country of origin. An employee who intends to work in the Netherlands for a longer period than three months needs a residence permit in addition to a work permit. He can use a 'combined residence and work permit' (gecombineerde vergunning voor verblijf en arbeid; GVVA). See (language: Dutch) or (language: English). EFBWW FIEC Posting report The Netherlands 09/ EN 7

8 2. Wages and salaries Note: The payment rules applying to overtime, shift work, working at unusual times, etc., are included in chapter 3, Additional payments and allowances Where can you find the relevant information? You can find information on the regulations for the remuneration of employees and temporary agency workers who are posted to the Netherlands to perform temporary construction or infrastructure work in the following documents, available online: 'Posting of employees to the Dutch construction industry', paragraph 2.4; 'Posting of temporary agency workers to the Dutch construction industry', paragraph 2.4; Both documents are available, in several languages, at The complete text of the applicable CAO provisions is included in the document 'Waga Core Provisions for the Construction Industry' at (under Posting of workers, click on Collective Agreement for the Dutch Construction Industry). Current wage and salary amounts The wage and salary tables applying to employees who are posted from abroad can be found at Posted temporary agency workers are paid the same wages as posted employees. Important concepts and definitions Paragraph 7.1 of this report sets out how the European Directive on the Posting of Workers has been interpreted under Dutch law and how the latter relates to the Collective Agreement (CAO) for the Construction Industry. Furthermore, the meaning of several terms is explained in this paragraph. Any further questions? Do you have any further questions about the content of the CAO for the Construction Industry after reading the above information? Please contact the employers' and employees' organisations involved. See paragraph 8.1. EFBWW FIEC Posting report The Netherlands 09/ EN 8

9 3. Additional payments and allowances Where can you find the relevant information? You can find information on the additional payments and allowances paid to employees and temporary agency workers who are posted to the Netherlands to perform temporary construction or infrastructure work in the following documents, available online: 'Posting of employees to the Dutch construction industry', paragraphs 2.2 and 2.5; 'Posting of temporary agency workers to the Dutch construction industry', paragraphs 2.2 and 2.5; Both documents are available, in several languages, at The complete text of the applicable CAO provisions is included in the document 'Waga Core Provisions for the Construction Industry' at (under Posting of workers, click on Collective Agreement for the Dutch Construction Industry). Important concepts and definitions Paragraph 7.1 of this report sets out how the European Directive on the Posting of Workers has been interpreted under Dutch law and how the latter relates to the Collective Agreement (CAO) for the Construction Industry. Furthermore, the meaning of several terms is explained in this paragraph. Any further questions? Do you have any further questions about the content of the CAO for the Construction Industry after reading the above information? Please contact the employers' and employees' organisations involved. See paragraph 8.1. EFBWW FIEC Posting report The Netherlands 09/ EN 9

10 4. Working hours and resting periods Where can you find the relevant information? You can find information on working hours and resting periods for employees and temporary agency workers who are posted to the Netherlands to perform temporary construction or infrastructure work in the following documents, available online: 'Posting of employees to the Dutch construction industry', paragraph 2.2; 'Posting of temporary agency workers to the Dutch construction industry', paragraph 2.2. Both documents are available, in several languages, at The complete text of the applicable CAO provisions is included in the document 'Waga Core Provisions for the Construction Industry' at (under Posting of workers, click on Collective Agreement for the Dutch Construction Industry). Important concepts and definitions Paragraph 7.1 of this report sets out how the European Directive on the Posting of Workers has been interpreted under Dutch law and how the latter relates to the Collective Agreement (CAO) for the Construction Industry. Furthermore, the meaning of several terms is explained in this paragraph. Any further questions? Do you have any further questions about the content of the CAO for the Construction Industry after reading the above information? Please contact the employers' and employees' organisations involved. See paragraph 8.1. EFBWW FIEC Posting report The Netherlands 09/ EN 10

11 5. Safety and health Where can you find the relevant information? You can find information on safety, health and working conditions of employees and temporary agency workers who are posted to the Netherlands to perform temporary construction or infrastructure work in the following documents, available online: 'Posting of employees to the Dutch construction industry', paragraph 2.6; 'Posting of temporary agency workers to the Dutch construction industry', paragraph 2.6. Both documents are available, in several languages, at The complete text of the applicable CAO provisions is included in the document 'Waga Core Provisions for the Construction Industry' at (under Posting of workers, click on Collective Agreement for the Dutch Construction Industry). Important concepts and definitions Paragraph 7.1 of this report sets out how the European Directive on the Posting of Workers has been interpreted under Dutch law and how the latter relates to the Collective Agreement (CAO) for the Construction Industry. Furthermore, the meaning of several terms is explained in this paragraph. Any further questions? Do you have any further questions about the content of the CAO for the Construction Industry after reading the above information? Please contact the employers' and employees' organisations involved. See paragraph 8.1. EFBWW FIEC Posting report The Netherlands 09/ EN 11

12 6. Holidays Where can you find the relevant information? You can find information on - paid and unpaid - leave entitlement for employees and temporary agency workers who are posted to the Netherlands to perform temporary construction or infrastructure work in the following documents, available online: 'Posting of employees to the Dutch construction industry', paragraph 2.3; 'Posting of temporary agency workers to the Dutch construction industry', paragraph 2.3. Both documents are available, in several languages, at The complete text of the applicable CAO provisions is included in the document 'Waga Core Provisions for the Construction Industry' at (under Posting of workers, click on Collective Agreement for the Dutch Construction Industry). Important concepts and definitions Paragraph 7.1 of this report sets out how the European Directive on the Posting of Workers has been interpreted under Dutch law and how the latter relates to the Collective Agreement (CAO) for the Construction Industry. Furthermore, the meaning of several terms is explained in this paragraph. Any further questions? Do you have any further questions about the content of the CAO for the Construction Industry after reading the above information? Please contact the employers' and employees' organisations involved. See paragraph 8.1. EFBWW FIEC Posting report The Netherlands 09/ EN 12

13 7. Additional information Important terms Posting In this report, posting refers to employees of a foreign company who are performing temporary construction or infrastructure work in the Netherlands. The company concerned may perform construction or infrastructure work in the Netherlands using its own employees, or it may use its employees to perform construction or infrastructure work in the Netherlands which is commissioned by another company. In either case it is assumed that the employment contracts of the employees involved are based on non-dutch law. Re-posting (re-hiring) The information provided in this report does not apply to re-posting. In this context, re-posting is understood to mean the situation where a foreign company posts an employee to a Dutch company, which in its turn posts the employee to another company in order to have him perform construction or infrastructure work temporarily. The same employment conditions apply to re-posted employees as those applying to any own employees of the above-mentioned Dutch company who perform the same work. European Directive on the Posting of Workers and Waga The European Directive on the Posting of Workers 96/71 EC has been translated into the Dutch situation through the Terms of Employment (Cross-Border Work) Act (Waga). By virtue of this act, the so-called Waga core provisions - in addition to a number of statutory regulations - apply to employees of foreign companies who are temporarily working in the Netherlands. These are CAO provisions which have been declared generally binding with regard to: a. maximum working hours and minimum resting periods; b. minimum number of days holiday, during which the employer is obliged to pay wages; c. minimum wages, including overtime allowances and not including additional company pension schemes; d. conditions for posting employees; e. health, safety and hygiene in the workplace; f. protective measures with regard to the terms of employment and working conditions of children, young people and women who are pregnant or have recently given birth; g. equal treatment of men and women, as well as other non-discriminatory provisions. EFBWW FIEC Posting report The Netherlands 09/ EN 13

14 This allows for fair competition and will ensure minimum conditions of employment for the employees involved. CAO for the Construction Industry A foreign company (not being a temporary employment agency) that orders an employee to perform construction or infrastructure work in the Netherlands on a temporary basis must comply with the Waga core provisions of the CAO for the Construction Industry. The complete text of the Wage core provisions of this CAO is included in the document 'Waga Core Provisions for the Construction Industry' at (under Posting of workers, click on Collective Agreement for the Dutch Construction Industry). The online publication 'Posting of employees to the Dutch construction industry' provides an explanation of these provisions. It is available in several languages at Construction and infrastructure work This includes work in the field of:» residential and non-residential building (e.g. houses and business premises);» groundwork, road and hydraulic engineering (e.g. non-agricultural earth moving and the construction of roads, bridges and dykes);» infrastructure (roads, railways, sewerage systems and cable networks). Temporary work in the construction industry A foreign temporary employment agency that orders an employee to perform construction or infrastructure work in the Netherlands on a temporary basis must comply with the Waga core provisions of the ABU CAO. The Waga core provisions of this CAO are explained in the brochure 'Placement in the Netherlands' ('Uitzenden naar Nederland'). The brochure is available in Dutch, English and Polish at In accordance with the Waga core provisions of the ABU CAO, foreign temporary employment agencies must also comply with a number of provisions of the CAO for the Construction Industry. The online publication 'Posting of temporary agency workers to the Dutch construction industry' provides an explanation of these provisions. It is available in several languages at The complete text of the applicable CAO provisions is included in the document 'Waga Core Provisions for the Construction Industry' at (under Posting of workers, click on Collective Agreement for the Dutch Construction Industry). A foreign temporary employment agency that spends more than 50% of its payroll on temporary agency workers in the construction industry is regarded as a construction company in this context. Therefore, it is obliged to comply with the Waga core provisions of the CAO for the Construction Industry. Hiring construction companies may only use temporary employment agencies that are NEN-4400 certified. Information on the certification of temporary employment EFBWW FIEC Posting report The Netherlands 09/ EN 14

15 agencies can be obtained from the Labour Standardisation Foundation (Stichting Normering Arbeid; SNA): (language: Dutch). 7.2 Liability of employer and hirer Statutory regulations The employer is legally liable for any damage or loss caused during and within the scope of the work by an employee. A hirer is also considered an employer in this context. The liability of the hirer therefore also extends to posted employees, temporary agency workers, etc. The employee is not liable to the employer, unless the damage or loss is caused by intent, negligence or gross negligence on the part of the employee, e.g. in case of a criminal offence. The hirer is jointly and severally liable for any damage or loss incurred by the posted employee during work, unless the hirer can demonstrate that he has taken sufficient safety measures. The hirer and the employer may include additional agreements in the posting contract. Employers and hirers who have foreign nationals working for them in the Netherlands, for whom work permits are required under the Foreign Nationals (Employment) Act (Wet arbeid vreemdelingen; Wav), without such permits having been issued, both risk a fine of 12,000 per illegal employee. A similar fine applies to a temporary employment agency that is not registered with the Dutch Chamber of Commerce as well as to the hirer who uses this agency. Temporary agency workers who are not paid in accordance with the legal standards, may hold liable either the temporary employment agency or the hirer, at their discretion. However, the hirer is not liable if the temporary employment agency has a NEN-4400 certificate. CAO regulations By virtue of the CAO for the Construction Industry, the hiring construction company is obliged to see to it that the temporary employment agency it works with observes the applicable CAO regulations. If the temporary employment agency fails to do so and the hiring construction company fails to take action, then the construction company is at risk of being held liable. 7.3 Working as an employee of a Dutch company Dutch temporary employment agency A foreign temporary agency worker who has an employment contract with a Dutch temporary employment agency is entitled to the same employment conditions as his Dutch colleagues. If he performs construction work, the CAO provisions set out in the online document 'Working in construction; Temporary work, posting and payrolling; EFBWW FIEC Posting report The Netherlands 09/ EN 15

16 CAO regulations for employees of Dutch intermediaries' apply to him. This document is available in several languages at Dutch construction company A foreign employee who has an employment contract with a Dutch construction company is entitled to the same employment conditions as his Dutch colleagues who do the same work. The entire CAO for the Construction Industry applies to him. The complete text of this CAO, as well as an abridged and simplified version of it, are available in Dutch at Reporting malpractices Have you noticed that a construction company or temporary employment agency does not observe the CAO regulations? And does this lead to unfair competition with other companies or malpractices against the employees or temporary agency workers involved? Then please report this to Bureau naleving & werkingssfeer (Bureau of compliance and scope of application) of the Technisch Bureau Bouwnijverheid. See (language: English; also available in other languages). Does your report concern non-compliance with statutory regulations with regard to, for instance, wages, working conditions or labour market fraud? Then please contact the government body Inspectorate SZW (Inspectie SZW). See (language: English). This website contains a large number of relevant brochures, which are available in several languages. EFBWW FIEC Posting report The Netherlands 09/ EN 16

17 8. Useful links 8.1 Parties to the Collective Agreement (CAO) for the Construction Industry Employers' organisations o Bouwend Nederland (Dutch Construction and Infrastructure Federation): o Aannemersfederatie Nederland Bouw en Infra (Dutch Construction and Infrastructure Contractors Federation): o NVB Vereniging voor ontwikkelaars & bouwondernemers (Dutch Association of Developers and Construction Contractors): o Vereniging van Waterbouwers (Dutch Association of Hydraulic Engineers): Employees' organisations o FNV Bouw (Dutch Building and Woodworkers Union): o CNV Vakmensen (Dutch Federation of Christian Trade Unions): Publications of parties to the CAO for the Construction Industry Parties to the CAO for the Construction Industry have developed a special website for employees and temporary agency workers who are temporarily working in the Dutch construction industry. This website provides information in several languages about the terms of employment to which they are entitled. See The complete text of the applicable CAO provisions with regard to the posting of employees and temporary agency workers to the Dutch construction industry is included in the English document 'Waga Core Provisions for the Construction Industry'. You can find this document at &hoofdmenu_item_id= Government bodies Products, services and regulations of national, regional and local government organisations (languages: Dutch and English): Residence permits (languages: Dutch and English): Social security: Social security agency for the statutory employee insurance schemes with regard to unemployment, illness and incapacity for work (language: Dutch): Taxation (languages: Dutch, English and German): EFBWW FIEC Posting report The Netherlands 09/ EN 17

18 Legal notice The information contained in this report has been updated to the date on which it was drawn up. The author is not responsible for the contents of external information sources which have been used. May 2014 National expert: Joyce van Dongen English translation: Vertaalbureau "De Drechtsteden", EFBWW-FIEC. All rights reserved. EFBWW FIEC Posting report The Netherlands 09/ EN 18