Thematic feature - posted workers

This article examines the Dutch situation, as of June 2003, with regard to: legislation and collective bargaining on the pay and conditions of posted workers (ie workers from one EU Member State posted by their employer to work in another); the number of such posted workers; and the views of the social partners and government on the issue.

EU Directive 96/71/EC concerning the posting of workers in the framework of the provision of services seeks to avoid 'social dumping' by ensuring that a minimum set of rights is guaranteed for workers posted by their employer to work in another country. The basic principle is that the working conditions and pay in effect in a Member State should be applicable both to workers from that State, and those from other EU countries posted to work there. The Directive covers undertakings established in a Member State, which, in the framework of the transnational provision of services, post workers to the territory of another Member State.

The Directive establishes a core of essential regulations aimed at ensuring employees' minimum protection in the country in which their work is performed. It guarantees the application of the host country's statutory and regulatory provisions relating to:

  • maximum work periods and minimum rest periods;
  • minimum paid annual holidays;
  • minimum rates of pay, including overtime rates (excluding supplementary occupational retirement pension schemes);
  • the conditions of hiring-out of workers, in particular the supply of workers by temporary employment agencies;
  • health, safety and hygiene at work;
  • protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; and
  • equality of treatment between men and women and other provisions on non-discrimination.

As well as these generally applicable statutory and regulatory provisions, a Member State's collectively agreed provisions on these issues must also be applied to workers in the construction sector (where these are based on 'collective agreements or arbitration awards which have been declared universally applicable').

The Directive allows for a number of exceptions to all or some of these 'minimum provisions' for: the crew of merchant ships; staff involved in the initial assembly and/or first installation of equipment; postings lasting less than a month; and where 'the amount of work to be done is not significant'. The Member States were obliged to transpose the Directive by 16 December 1999.

In 1999, the European Industrial Relations Observatory (EIRO) conducted a comparative study on posted workers and the implementation of the Directive. In June 2003, the EIRO national centres in each EU Member State (plus Norway), have updated the basic information in the earlier comparative study, four years on, in response to a questionnaire. The Dutch responses are set out below (along with the questions asked).

Regulatory framework

What changes were made to national legislation in your country in order to implement the Directive? And have there been any further changes to the relevant legislation since then?

In December 1999, the Working Conditions/Terms of Employment for Cross-border Employment Act (Wet arbeidsvoorwaarden grensoverschrijdende arbeid, Waga) was introduced to comply with the EU posted workers Directive. As existing Dutch law already complied with most of the regulations of the Directive, few alterations were needed. Amendments made through the introduction of the Waga legislation concerned the Civil Code, the Extension of Collective Agreements Act (Wet op het algemeen verbindend en onverbindend verklaren van bepalingen van collectieve arbeidsovereenkomsten, WAVV) (NL0211104F) and the Code on Civil Proceedings. In the Civil Code the scope of existing legal provisions on minimum paid annual holidays, health, safety and hygiene at work, prohibition of dismissal during pregnancy and equal treatment, was extended to employees working in the Netherlands for a limited period and whose contract of employment is ruled by other than Dutch law. These statutory provisions apply to all workers in all industries. To the WAVV a provision was added which states that provisions of collective agreements which have been extended officially also apply to employees covered by the posted workers Directive, but solely those in the construction industry.

Since, there have been no changes in the regulatory framework.

Please outline very briefly the current legal position of posted workers in your country - are they covered by specific or general employment legislation, what is their position with regard to social security (are they covered under the social security system in their country of origin or the host country?) etc. Also, have any specific measures been taken to prevent abuses arising from the posting of temporary agency workers (eg an agency hiring temporary workers through a subsidiary in a low labour cost country and sending them to work for a user company in a higher labour cost country)?

See above for the details of the legislation implementing the Directive. Generally, posted workers in the Netherlands are covered by the general employment legislation. As far as social security is concerned, in principle posted workers in the Netherlands are covered by the Dutch social security system, in conformity with EU Regulation (EEC) No. 1408/71, though they have to fulfil the relevant criteria (eg having worked for a sufficiently long period to be entitled to unemployment benefit). The issue is a very complex one, however, even when bilateral treaties have been negotiated, as is the case with Belgium and Germany. Although these treaties have resolved some of the problems, many issues remain.

No special legal measures have been taken to prevent abuses arising from the posting of temporary agency workers (though see below for the case of the construction industry).

Have there been any collective agreements concluded on the issues covered by the Directive? Have the social partners been consulted as part of the legislative and policy-making process and, if so, in what way? Have the social partners taken any other initiatives related to posted workers?

The only known collective agreement on the issues covered by the Directive is the sectoral agreement for the building and construction industry (actually, there are several related agreements for different categories of personnel in the industry, but they all contain the same clause on posted workers) - see below.

On the Dutch implementation of the Directive, the social partners were involved in a more or less indirect way. In 1991, the bipartite Labour Foundation (Stichting van de Arbeid, STAR) issued a recommendation on 'some aspects of the social dimension of Europe 1992'. In the recommendation, the Foundation paid considerable attention to the subject of extension of collective agreements. After the implementation of the Directive (see above), the Lower House of the Dutch parliament requested the government to ask the Foundation for advice on expanding the scope of the Directive in terms of the extension of collective agreements (ie applying the terms of collective agreements to posted workers outside the building and construction sectors, cf Article 3(10) of the Directive). The Foundation issued a divided response (Advies inzake de uitvoering van Richtlijn 96/71/EG[Advice on the implementation of Directive 96/71/EC], Publicatienr 11/00, October 2000): representatives of the trade union confederations supported an extension of the scope of the Directive, while representatives of the employers’ organisations were opposed to such an extension. For the Minister of Social Affairs and Employment, this division was a major reason not to change the law.

The workers affected

Please provide the latest figures available on the number of employees who are posted from your country to other EU Member States.

Please provide similar figures, if available, for employees posted to your country from other EU Member States.

No specific information is available on postings from the Netherlands to other EU Member States or vice-versa. The available statistics mainly concern cross-border employees, and then only across the borders with Belgium and Germany. Because the literature (see 'Applications of the provisions of Regulation (EEC) 1408/71 and the issue of posting: facts and problems', Peter Donders, in Prospects of social security coordination, Paul Schoukens (ed), Leuven, 1997) assumes that the pattern of posting follows the pattern of cross-border employment, we will present the figures on cross-border employment.

In 2002, according to the Central Statistical Office, there were 18,870 incoming employees from Belgium and 11,115 from Germany. Both figures were higher than in the years before. In the tight labour market of 1999-2002 there were doubtless quite a few workers from other countries as well (amongst whom also posted workers), but no figures could be obtained. In 2002, there were 6,110 Dutch employees working in Belgium, and 11,170 in Germany. These figures were lower than the years before, probably due to the tight labour market.

Workers in the construction industry

The EU Directive, although of general application, is aimed particularly at workers in the construction industry (building and public works), in which discrepancies between practice and legal standards are often observed. Has any special action been taken by the social partners or the state to address the situation of posted workers in this industry?

A new definition of foreign employees was introduced in the 2001 collective agreement for the construction industry. In article 1, section 5, it is stated that the collective agreement applies to several categories of employees. Article 1a states that the collective agreement applies to employees who usually live in another country and are employed by an employer from another EU Member State only when these employees have been working for at least one month in the Netherlands. Article 1a then states which sections of the agreement apply to such employees. These subjects include working time, wages, holidays and overtime.

However, Article 1a of the agreement states that when such employees are employed by an employer which has no connection to the EU, the threshold of one month and the restriction that only the listed terms of employment apply, are no longer valid: the collective agreement applies in its entirety from the moment the work starts.

If workers posted to the Netherlands are employed by a temporary work agency, the construction industry collective agreement applies, as far as wages and allowances for expenses are concerned, straight away.

The positions of the social partners and government

Please outline the stances adopted by the social partners and the public authorities/government on this issue. Particular attention should be given to unions and employers in the construction industry.

During the debate on the implementation of the posted workers Directive, it became clear that the trade unions wanted to extend the scope of the Directive, in terms of the application of Dutch collective agreements to posted workers, to other sectors beyond construction. They mentioned the example of Chinese employees in the metal and engineering industry earning only 20% of the normal wage. The employers' organisations were opposed to such an extension, fearing that the resulting harmonisation of wage costs would be detrimental to the free market. The abovementioned 2000 recommendation from the Labour Foundation makes it clear that the position of the social partners on this issue has not changed since. Because of the differing views of the social partners, the authorities see no reason to make changes to existing law.

In the construction sector, the issue has of course long been an important one for the unions. For the employers, the situation is a little more complicated. Although some individual employers would no doubt like to do away with the Directive, for the industry's employers' organisation the situation is different. The Directive also protects the sector, which still has a rather 'national' character, from competition from abroad. This probably explains why the subject (and the introduction of the abovementioned article 1a in the construction industry collective agreement) has to our knowledge raised no major controversies between the negotiators. (Robbert van het Kaar, HSI)

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