To which terms of employment are posted workers in the transport sector entitled?
From July 30, 2020, workers posted to the Netherlands are entitled to additional terms and conditions of employment. However, this does not (yet) apply to workers in the transport sector. This FAQ gives an overview of the terms and conditions of employment to which posted workers in the transport sector are entitled. There is no change to the administrative obligations.
‘Hard Core’ of terms of employment
Workers in the transport sector who are posted to the Netherlands are entitled to the ‘hard core’ of terms of employment of Dutch labour legislation and, if a universally binding collective labour agreement is applicable, to the hard core of the collective labour agreement conditions.
The hard core of terms of employment of Dutch labour legislation, to which all posted workers are entitled, comprise:
- the legal minimum wage;
- Rules for working hours and sufficient rest hours;
- Healthy, safe and hygienic working conditions;
- Equal treatment of men and women; and
- A minimum number of days off.
These terms of employment are set out in Dutch labour legislation, i.e. the Minimum Wage and Minimum Holiday Allowance Act, the Working Hours Act, the Working Conditions Act and the Equal Treatment Act.
In sectors where a universally binding collective agreement is applicable, posted workers are also entitled, in accordance with the Collective Labour Agreements (Declaration of Universally Binding and Non-Binding Status) Act (Avv), to the core of terms of employment from this collective agreement. Posted workers are thereby entitled to:
- Maximum working hours and minimum rest hours;
- The minimum number of paid holiday and leave days and extra holiday bonuses;
- The minimum wage*, consisting of:
- The applicable periodic wage for the scale;
- The applicable reduction in working hours per week/month/year/period;
- Bonuses for overtime, shifted and irregular working hours, including public holiday bonus and shift work bonus;
- Interim wage increases;
- Reimbursement of expenses, including travel costs and travel time allowances, costs of bed and board, and other costs necessary for carrying out the job;
- End-of-year bonuses;
- Additional allowances related to holidays.
- Conditions for making workers available;
- Health, safety and hygiene at work;
- Protective measures for workers who are pregnant or have recently given birth;
- Equal treatment of men and women and other conditions related to non-discrimination.
* The minimum wage does not include the following: contributions to supplementary occupational pension schemes, social security claims above the statutory entitlements and allowances paid on top of the wages for costs incurred by the posted worker for travel, accommodation or meals.
The collective agreement to be applied by the employer abroad is determined by the scope of the collective agreement. In determining which collective agreement should be applied by the employer abroad, he needs to consider only his activities in the Netherlands. Activities outside the Netherlands are not taken into consideration. The applicable collective agreement will therefore usually be the collective agreement of the business sector in which the employer abroad carries out most of his activities in the Netherlands.
On the website of the Ministry of Social Affairs and Employment, you will find an overview of all the collective agreements. Translations are available of the collective agreements for the business sectors in which most postings to the Netherlands take place.
Additional terms of employment and obligations for posted temporary agency workers
Besides the WagwEU, the Placement of Personnel by Intermediaries Act (Waadi) is also applicable to posted temporary agency workers. The Waadi is applicable when a foreign business makes workers available in the Netherlands, to work under the supervision and management of the Dutch service recipient. These workers are entitled to some of the terms of employment applicable to similar employees of the service recipient. It concerns the following terms of employment, which also apply to employees of the client (service recipient) or similar employees (in the relevant business sector):
- Wages and other allowances, such as reimbursement of travel costs;
- Working hours and rest hours, including overtime, working night shifts, breaks, the duration of holidays and working on public holidays;
- Protective regulations for young people and women who are pregnant or breastfeeding; and
- Equal treatment.
The service recipient is obliged to inform the employer abroad of the terms of employment that apply in his organisation, prior to the commencement of the posting.
Under the Waadi, a number of additional obligations are also applicable. For instance, the foreign temporary employment agency or other business making workers available in the Netherlands must register with the Dutch Commercial Register.
Reimbursement of costs that are actually incurred
Reimbursements and allowances paid to workers as reimbursement of costs actually incurred in relation to the posting, such as travel, meal and accommodation costs, cannot be regarded as part of the legal minimum wage or the minimum wage that applies under universally binding collective agreement conditions. These allowances must be paid in addition to the minimum wage.
Exception for more favourable terms of employment in the home country
If the terms and conditions of employment are more favourable in the posted worker’s home country, then they are applicable. This applies to each separate term of employment. For example, if only the minimum wage in the home country is more favourable, then the term of employment for minimum wage in the home country will apply, but the Dutch rules regarding rest hours, holidays, safe working conditions and equal treatment, etc. will apply.