From 1 March 2020: notification requirement for cross-border services (from the EEA and Switzerland)!
From 1 March 2020, the notification requirement, which follows from ‘the Posted Workers in the European Union (Working Conditions) Act’ (WagwEU), will come into effect. The WagwEU has been in force since 1 June 2016 and is an implementation of a European Directive. The Netherlands is one of the last European countries to introduce the notification requirement.
The notification requirement means that all employers established in the EEA (EU + Norway, Liechtenstein and Iceland) and Switzerland must make a notification if they come to work in the Netherlands with their employees. The notification requirement also applies to self-employed persons without employees who will temporarily perform (certain) work in the Netherlands.
With this notification requirement, the legislator hopes to offer the SZW inspectorate more guidance on supervision and enforcement in the field of foreign employees who are temporarily employed in the Netherlands. This includes checking the minimum wage, social security contributions (whether or not an A1 statement is present) etc.
There are also a number of exceptions to the notification requirement. We will explain these exceptions below. We will also briefly specify exactly what information must be reported. But first, we will appoint the parties who are obliged to make or verify the notification.
1. Person required to report
The person who must make the notification is the foreign employer (‘Service provider’) who temporarily:
- comes to the Netherlands with its own staff to perform work;
- posts employees from a multinational company to its own branch in the Netherlands; or
- posts temporary workers, as a foreign temporary employment agency, to work in the Netherlands.
Subsequently, the Dutch hirer which employs the personnel and with which the Service Provider has entered into a contracting agreement or contract for services (‘Service Recipient‘) must verify the report.
The notification requirement applies to temporary services that start on or after 1 March 2020. The notification can be effected in the dedicated online portal, which can be found at: https://www.postedworkers.nl/online-melden.
The notification must be made before the start of the work. From 10 February 2020 it is possible to report work commencing on or after 1 March 2020.
The notification requirement also applies in some cases to self-employed persons who will perform a temporary assignment in the Netherlands (‘Self-employed persons‘); see point 3 below.
2. What must be reported?
In any case, the Service Provider must report the following information:
- identity of the reporter;
- the company details;
- the contact person;
- the identity of the customer/client;
- the sector in which the activities are carried out in the Netherlands;
- the address of the worksite;
- the expected duration of the work;
- the identity of the person responsible for payment of wages;
- the identity of the employers who will work in the Netherlands;
- the presence of an A1 statement or other proof that demonstrates where the social security contributions are paid for the employees, because of the contribution for the applicable social security scheme.
With this link you van view the checklist for foreign employers.
3. Self-employed persons
For Self-employed persons, a notification only needs to be made if they are working in a number of specific sectors. These sectors include agriculture and horticulture, metalworking, construction, cleaning, window cleaning, the food industry and healthcare. Additional rules apply to the transport and temporary employment sectors. The SBI code determines the sector. The Self-employed need to report among other things:
- the identity of the reporter;
- the identity of the customer/client;
- the sector in which the activities are carried out;
- the address of the worksite;
- the expected duration of the work; and
- information about where the social contributions are paid.
With this link you van view the checklist for foreign self-employed persons.
Exceptions to the notification requirement are listed below. No notification is required in the following cases:
- work relating to the initial assembly or installation of delivered goods for a period of no more than 8 days;
- work, being urgent maintenance or repairs, or software installations, for a maximum period of 12 consecutive weeks within a period of 36 weeks;
- business meetings for a period of maximally 13 consecutive weeks in 52 weeks;
- various other activities such as attending scientific conferences; and
- various types of employees, such as researchers, international athletes and artists, are also exempt from the obligation to report, each with their own maximum periods.
A number of exceptions also apply within the transport sector. Not the entire transport sector is exempted from the notification obligation, but a number of (sub) sectors. It is important to check the regulations; for which the SBI codes are definitive.
In addition to the exceptions, a facilitation exists for certain employers or Self-employed persons. This facilitation means that in some cases an annual notification can be made.
The annual notification applies to small employers (with a maximum of 9 employees) and Self-employed persons who are located a maximum of 100 kilometres from the Dutch border and who provide services frequently in the Netherlands. In addition, the annual notification also applies to the carriage of goods by road.
On the other hand, this annual notification does not apply to employers in the construction industry, temporary job placement agencies and personnel management.
The SZW Inspectorate monitors compliance with the notification requirement and can impose a fine if this requirement is not met. If the administrative obligations are not met, the foreign employer can be fined (from Euro 12,000 per violation). In addition, the WagwEU policy on the imposition of a fine includes penalty-increasing and reducing conditions. For example, the fine can be increased by 50% if the Service Provider has deliberately evaded regulations. For a natural person, the fine will be reduced by 50%.
As indicated, there is an obligation on the Dutch Service Recipient to verify the notification. The Dutch Service Recipient can also be fined if it has not checked/verified the notification, has not passed on any inaccuracies or does not have a copy of the notification. Passing on inaccuracies or missing documents indemnifies the Service Recipient from a sanction.
The notification requirement follows as indicated from the Posting of Workers Directive. Similar notification requirements exist in the other EEA countries. A Dutch employer who wants to cross the border with employees must consider comparable notification requirements!