11 March 2020

UPDATE Posted Workers Notification obligation per 1 March 2020

UPDATE Posted Workers Notification obligation per 1 March 2020
With this news release we would like to inform you that as of 1 March 2020 posted workers notifications will be mandatory in the Netherlands. Foreign employers / service providers who post employees from a member state of the EU or EEA/Switzerland to work in the Netherlands are obliged to report this to the SVB before the posted worker commences work in the Netherlands.


The freedom to provide services within the European Union (EU) is subject to the Posting of workers Directive (96/71/EC) and the Enforcement Directive (2014/67/EU). The scope of this legislation is to regulate and ensure a minimum uniform level of protection of posted workers’ rights within all Member States (MS) of the EU. In the Netherlands, these directives have been implemented in the Posted Workers in the European Union (Working Conditions) Act (‘WagwEU’).
Pursuant to a new legislative requirement imposed by the Dutch government, as of 1 March 2020 all temporary assignments or secondment activities have to be registered via an online tool (Meldloket WagwEU) of the Social Insurance Bank (SVB).


Subjects of the notification obligation
Posted workers are service providers based in a MS of the EU and sent to another MS in the context of a contract of services, an intra-group posting or a hiring out through a temporary agency.
Three categories can be distinguished here:
1. EU citizens operating on an EU contract;
2. Non-EU nationals working on an EU contract;
3. Several self-employed EU citizens.
Exceptions are business travellers who do not provide any services, but are only present in The Netherlands temporarily and to conduct incidental labour, such as: attending meetings or assemble goods or installations (if for the first time and under 8 days) or conduct temporary urgent maintenance/ installation (maximum 12 consecutive weeks in 36 weeks’ time).


Timeline notification
All temporary assignments starting per 1 March 2020 need to be reported through the online tool prior to their commencement. Ongoing assignments that started before 1 March 2020 do not have to be reported. 


Responsible parties
The service provider is the EU based company that posts the worker to the Netherlands, whereas the service recipient is the Dutch company where the employee is posted.
The obligation resting upon the service provider on the one hand, is to submit the online notification timely and complete. The service recipient, the other hand, has the duty to verify the correctness of the information submitted by the service provider and to approve it or, as the case might be, inform the authorities within 5 days that the notification is incorrect .


Information that needs to be provided
The notification obligation has a wider scope than the already implemented administrative duty to keep records and retain documents, and as such includes information on:
✓ the identity of the person submitting the online notification;
✓ the details of service provider;
✓ contact person who functions as a point of contact present in The Netherlands;
✓ the employees posted to the Netherlands;
✓ the (expected) duration of the work;
✓ details of the person responsible for payment of salary/wage;
✓ the identity of the service recipient in the Netherlands;
✓ the sector in which the activities will be carried out in The Netherlands;
✓ the address, place or coordinates of the location where the work will be performed;
✓ the A1 declaration forms, or proof of where the social security contributions are paid for;
✓ contact details of the designated responsible person within the company, who can be held accountable in case of non-compliance.
Further, in terms of actual data that has to be inserted in the online tool, The Netherlands has opted for a rather simple system where specific information needs to be filled in, meaning that no actual documents need to be uploaded. However, it is crucial that the information is accurate. Please note that the online tool is based on a smart system, meaning that all company data can be counter-verified by the authorities on EU level. 
Furthermore, upon request from the Dutch authorities, the contact person must be able to produce any of the requested documents within 4 weeks.


Risks of non-compliance in The Netherlands
The failure to comply with these obligations will be regarded as a violation and may therefore be punished with an administrative fine:
- EUR 1.500 – 4.500 per employee for the service provider for not filing the notification at all or not on time;
- EUR 8.000 for the service provider for failure to retain the required documentation;
- EUR 6.000 for the service provider for failure to provide the required documentation;
- EUR 1.500 for the service recipient for failure to notify the authorities of an incorrect notification.
As part of the adjustment period, the Dutch authorities granted a grace period until October 2020, during which companies that are posting workers will solely receive a warning for improper notifications. However, as the long-term risks are rather significant, we urge you to ensure correct, complete and timely provision of information.
That being said, please be informed that the information in this news release is solely a summary of the applicable guidelines. The posting of workers obligations pertaining to both the notification and the administrative documents retention are rather complex subjects. If you have any questions or need further support, please do not hesitate to contact us at postedworkers@briddge.com.