On 29 May 2018 the European Parliament approved the revised Posting of Workers Directive, aimed at guaranteeing respect for the rights of workers and a level playing field. The EU member states should implement the revised rules in national laws no later than 30 July 2020. The Dutch Ministry of Social Affairs and Employment submitted a legislative proposal of the Implementation Act on 11 December 2019. Below are the most important changes you need to know.
Equal pay for equal work
Posted workers are entitled to equal pay for equal work in the same workplace. This means that posted workers are entitled to all elements of remuneration as set out by national law and/or by (universally binding) collective labour agreements of the host country. This includes, amongst others, the gross wage, holiday allowance, allowances for overtime, expense allowances and bonuses. Under Dutch law the relevant elements of remuneration will not change as they were already considered remuneration. However, with the implementation of the Directive all the wage elements will be explicitly listed in the law.
Improved working conditions
Currently, travel and accommodation costs are considered part of remuneration. Under the new legislation these costs will no longer be considered part of remuneration, but these costs should be paid out separately in accordance with national law and/or practice applicable to the employment relationship.
In addition, the conditions of accommodation for posted workers which are provided either directly or indirectly by the employer should be in line with the relevant national laws.
Other employment conditions based on a collective labour agreement must also be applied to posted workers. Currently this only applies to universally binding collective labour agreements in the construction sector. Under the new legislation this will apply to universally binding collective labour agreements in almost all sectors. The new legislation does however not apply to the transport sector yet, because of specific regulations in connection with the specific cross-border nature of this sector. This is currently being negotiated.
Further, temporary agency workers posted to another member state are entitled to receive the employment conditions as applicable to such workers recruited by the host company and part of the permanent staff. However, laws and regulations regarding procedures, formalities and conditions of the entering and termination of employment, including non-compete clauses, are not applicable to temporary agency workers posted to another member state, as they are employed by an agency in another member state. Also laws and regulations regarding pension are excluded.
Duration of posting
The duration of the posting has been set at a maximum of 12 months, with a possible extension of 6 months. Thereafter, the national employment laws and regulations of the host member state will in principle be applicable to the posted workers. However, laws and regulations regarding procedures, formalities and conditions of the entering and termination of employment, including non-compete clauses, and laws and regulations regarding pension are excluded.
Coming into force and transitory law
The new legislation will come into force no later than 30 July 2020. It is proposed to stipulate that for the posting of workers that started before the date the new legislation came into force, the 12-month period is deemed to have been extended to 18 months. If, at the time of coming into force, the posting lasts longer than 18 months, the broader scope of Dutch law will be applicable.
Do you have any questions about this? Please contact Soo-Ja Schijf or Linda Couvreur.
