If a non-Dutch temp worker is made available to a Dutch hiring company, s/he will be entitled to the same employment conditions as the employees working at the hiring company where it concerns wages. If the hiring company falls under a generally binding CLA, that CLA also applies to the transnational temp worker, with the exception of rules governing the procedures, formalities and conditions for signing and termination of the employment agreement, as well as the rules on the pension scheme.
If a temp worker is made available to a hiring company, which in turn makes the temp worker available to a different hiring company in the Netherlands, the original employer of the temp worker remains obliged to observe the minimum employment conditions to which the temp worker is entitled based on the Dutch implementation of the Posted Workers Directive.
If a posting lasts longer than 12 months, the posted workers are entitled to all statutory Dutch employment conditions, with the exception of rules governing the procedures, formalities and conditions for signing and terminating the employment agreement, which includes non-competition clauses as well as pension rules.
The 12-month period can be extended to 18 months upon notification with reasons. The notification must be made within the last three months of the period that the posting was expected to last (for example, is case of a nine-month posting, notification of extension can be made from the seventh month of the posting). If the posting is extended to a longer period than 18 months, the posted worker will be entitled to all mandatory employment conditions as of the 13th month of the posting. Only if the extension is limited to a total duration of 18 months will the posted worker be entitled to all mandatory employment conditions starting the 19th month. The notification of extension must be made using the same online portal as for the notification of a transnational posting of workers prior to the posting.
If another posted worker performs the same task at the same place, the cumulative duration of the two postings periods will be considered for calculating the 12-month period. ‘The same task at the same place’ will be considered taking into account, inter alia, the nature of the service provided, the work performed and the address of the workplace.
Allowances specific to the posting are considered, as before, to be part of remuneration provided that they are not paid to reimburse expenses actually incurred. If it is not possible to determine which elements cover expenses actually incurred and which elements constitute remuneration, then the entire amount of the allowance will be considered as an expense allowance (and will therefore not be taken into consideration for determining whether the required remuneration is paid).
Allowances or reimbursement of expenditure to cover travel, board and lodging for workers away from home for professional reasons provided for in national or sector CBAs declared generally binding must only be granted to posted workers for travel to and from their regular place of work in Belgium and temporary assignments from this place of work to another place of work.
If a posting has started prior to the changes described entering into force, the 12-month period following which the posted workers are entitled to the mandatory employment conditions is automatically extended to 18 months.
The changes do not yet apply to the road transport sector.