What has changed since July 30, 2020, due to the revised Posted Workers Directive?

From July 30, 2020, posted workers are entitled to additional terms and conditions of employment, and there are new obligations for employers. The rights of workers posted temporarily to the Netherlands ensue from the European Posted Workers Directive from 1996. In 2018, the EU member states agreed to amend this directive. The revised Posted Workers Directive was implemented in Dutch law on July 30, 2020. It includes the following changes:

Expansion of the ‘hard core’ of terms of employment

The ‘hard core’ of terms of employment to which posted workers are entitled is expanded by:

Conditions for workers’ accommodation, if the employer makes accommodation available to the workers who are not at their usual place of work in the Netherlands; and
Reimbursement of travel, meal and accommodation costs for workers who for the purpose of work are away from home. This concerns only the costs incurred by posted workers when they have to commute to their usual place of work in the Netherlands, or when their employer sends them temporarily from that usual place of work to another place of work.

Entitlement to additional terms of employment after 12 or 18 months

After 12 months, posted workers are now entitled to additional Dutch terms of employment. They are then entitled to all Dutch terms and conditions of employment of Dutch labour legislation and of universally binding collective labour agreement conditions, with the exception of conditions about supplementary occupational pension schemes and conditions about entering into and terminating a contract of employment.

If the posting initially lasts for a maximum of 12 months or less, and the posting runs on to a maximum of 18 months due to circumstances, the employer abroad may choose to apply only the ‘hard core’ of terms of employment for the first 18 months. For postings that commenced before July 30, 2020, this extension to 18 months applies automatically. For postings that commenced on or after 30 July 2020, a notification of this extension is provided through the online notification portal. If the employer abroad extends a posting of a maximum of 12 months to a maximum of 18 months in the online notification portal, the extension option can be ticked. This option is available during the last three months of the posting. The employer thus declares that the duration of the posting in the previous notification is extended to a maximum of 18 months.

Replacing a posted worker

If the employer abroad replaces a posted worker with another posted worker who carries out the same work at the same place, then this is regarded as a single posting. This means that the period of 12 months (or the extension to 18 months) does not start again when the replacement worker commences work. Work carried out in the Netherlands for a longer period can thereby not be given the appearance of being temporary work for a period of 12 months.

Additional terms of employment and obligations concerning posted temporary agency workers

Foreign temporary employment agencies or other businesses that make temporary agency workers available in the Netherlands must offer them all the conditions from the applicable collective agreement from day one, with the exception of conditions about supplementary occupational pension schemes and conditions about entering into and terminating a contract of employment.

The foreign employment agency is also responsible for the posted temporary agency worker receiving the correct terms and conditions of employment, even if the worker is sent on to a third party by the service recipient. The service recipient is obliged to inform the employer abroad in advance of sending on the posted temporary agency worker.

Reimbursement of costs actually incurred

The employer abroad must reimburse costs actually incurred in relation to the posting, such as travel, meal and accommodation costs, in accordance with the national law and/or the practice in the home country that applies to the contract of employment between the employer and his posted workers. For example, this may be the law or the applicable collective agreement in the home country.

The employer abroad must clarify whether parts of an allowance, and if so which parts, will be paid for these costs incurred in relation to the posting. If this is not clear, it is assumed that the whole allowance is paid as reimbursement of these costs, and this whole allowance cannot be counted as the legal minimum wage or the wage in accordance with the applicable collective agreement.

Exception for the transport sector

These changes are not yet applicable to posted workers in the transport sector. You can find information about the terms of employment to which posted workers in the transport sector are entitled here.

You can find more information about all the terms and conditions of employment to which posted workers are entitled here.