What is posting?
When does an activity constitute a posting?
According to the Terms of Employment for Posted Workers in the European Union Act (WagwEU), posting (transnational provision of services) is when a foreign employer that is not based in the Netherlands but in another EU or European Economic Area (EEA) Member State or in Switzerland, sends its employees to the Netherlands to perform an assignment for a client. There is usually a service agreement between the foreign employer and the Dutch client.
The WagwEU mentions three types of posting:
Provision of services
A foreign employer comes to the Netherlands with its own staff to perform a service or assignment. This is done under the supervision and on the account of the foreign employer. The service is performed for the Dutch client with whom the foreign employer has a contract. This could be a service contract, a building contract or an assignment agreement, among others.
Intra-group posting
A foreign employer temporarily posts employees from a multinational company from a branch in the EU, EEA or Switzerland to a branch of the same company in the Netherlands.
Temporary agency work
A foreign temporary employment agency temporarily provides temporary agency workers for remunerated work to a company established in the Netherlands. Here, supervision no longer lies with the foreign temporary employment agency, but with the Dutch company (the client/hirer). The foreign temporary employment agency remains responsible for the employment conditions of the posted workers.
Dutch legislation (WagwEU) also lays down more specific conditions for posting:
- The foreign company must genuinely carry out substantial activities in the European country where it is established (for example, carrying out its core activities in that European country and paying taxes and contributions there).
- The posting is temporary. Therefore, the worker must normally work in the country where their employer is established. Upon completing the posting, the worker must return to work in that country.
Sham posting
If the posting does not meet the above conditions, it is a sham (or fraudulent) posting. In that case, all Dutch laws and regulations apply. This includes the Foreign Nationals Employment Act (Wet Arbeid Vreemdelingen). If the worker is not an EU citizen and is a sham-posted worker, a fine may be imposed for illegal employment. The Dutch authorities carry out checks in this regard.