The European domestic market allows Polish entrepreneurs to execute orders in different EEA countries. This all thanks to the introduction of EU freedoms in relation to the flow of people and the provision of services. There is a topic that from year to year causes more and more interest among businessmen – the delagation of foreigners to Holland.
We heard about the changes in the middle of 2018. In December, the Dutch legislator has put together all the plans and projects. Today you may be faced with new responsibilities for employers who are planning delegation of employees to the Netherlands. From January 1, 2019, it is necessary to provide the information about the employee’s place. And term of performing work to the Ministry of Social Affairs and Employment, who is dealing with their audit.
In the context of the Directive of the European Parliament and of the Council (EC) 2018/957 of 28 June 2018, by which all the provisions will take effect from mid-2020. The current minimum wage will be replaced by the obligation of paying the same wage in the same position to a Dutch employee. Such a settlement, of course, will raise the costs associated with the delegation of employees to EU countries.
Next legal acts are dealing with delegation of employees to the Netherlands, including employees from Ukraine:
In a situation where the one wants to send an employee outside the EU to work in the Netherlands, it is necessary for the employer to obtain a work permit for him.
The employer needs to obtain a work permit in a situation where he wants to send an employee (who is not an EU citizen) to work in the Netherlands.
However, it is not mandatory if such delegated workers of Polish enterprises are doing temporary job offers in the Netherlands in the framework of the transnational provision of services.
Talking about this exception, the following conditions must be met:
Since January 1, 2019, new rules regarding the delegation of employees has come into force. Before doing things in the Netherlands, the Polish company must transfer the information of carry out orders to Inspectorate SZW. It is the information about people who will carry work out. Also, it is about the place and the period of implementation of work.
Before the employee arrives in the Netherlands, a Polish company must prove the following:
– the employee performs work in Poland,
– insurance premiums are paid for him.
As we know, the obligation to provide the minimum conditions of living has its source in the Directive 96/71 / EC of 16 December 1996. It is about the delegation of employees in the provision of services. An important element is that the salary is calculated in non-cash form.
Minimum gross rates (effective 1 January 2019 in the Netherlands)
Number of hours per week
22 years and more
The minimum wage is legally regulated in the Netherlands. Its height is determined twice a year (January 1 and July 1). The wages of persons of age 23 and 65 years cannot be lower than the minimum rate currently in effect. If we are dealing with workers under the age of 23, the minimum wage for adolescents would be appropriate term. The amount of remuneration depends on the full time that is implemented to the certain industry. In Holland, it is from 36 hours to 40 hours a week. It may also happen that in this industry a collective agreement is used. It is the so-called CAO. Its agreements also apply to delegated employees if it is mandatory.
Work hours: According to Dutch law 12 working hours in a row is the maximum number of hours per day. What gives 60 hours a week. If you exceed 5.5 hours, employees should set at least 30 minutes break. And after 10 hours of work — 45 minutes. As a rule, a break in work is not paid, depending on the CAO operating in the company. Work in night shifts cannot be more than 10 hours.
Holidays. An employer who sends an employee to work in another EU Member State must ensure that these persons are paid vacation at a level not lower than the current one in the state. It is enshrined within the framework of the freedom to provide services (Article 3, paragraph 1, paragraph b of Directive 96/71 / EC of the European Parliament and of the Council). From this rule, the Directive provides for certain exceptions.
Security.You must remember that in the Netherlands employees and employers are mutually responsible for safety in the workplace. The employee must be well-trained in safety regulations. In case of contact with hazardous substances the employer provides free personal protective equipment. Industrial accidents and complaints must be submitted to the Dutch Labor Inspectorate.
The employer must have and keep documents concerning the recruiting of employees. During the entire delegation, he must dispose of them in writing or in electronic forms and deliver them at the call of the relevant control authorities. By the way, among the necessary documents in Art. 9 Law WagW EU (Wet arbeidsvoorwaarden gedetacheerde werknemers In de Europese Unie) mentions:
In addition, the employer is obliged to provide employees with working conditions in the country to which they are delegated. Especially if such conditions are more profitable for employees. In particular these include:
In the event that employment conditions arising from national law are preferable to those guaranteed in the Netherlands, the employer, making a comparison, selects those that are preferable to the delegated employee. In accordance with the directive of the European Parliament and Council (EU) 2018/957 of 28 June 2018.
Above all, the place of work changes due to the fact of the delegation process. It is necessary to change the existing contract or to sign another agreement with it in this area. The company may also provide benefits to the delegated employee related to the performance of work outside the place of his residence. In this case, the company must cover the costs associated with relocation, travel expenses, extra charge with the separation from the family, etc.
For example, an enterprise who is dealing with delegation of employees to the Netherlands is required to appoint one person who speaks English to contact with them. This person will be responsible for informing the Social Affairs and Employment Inspection (SZW) in the Netherlands, if it would be necessary. He will provide a collection of working hours, wages, employment contract, confirmation of payment of wages. The information must be given whereupon the request of the Inspectorate of Social Affairs and Employment in paper or electronic forms.
What will happen if we do not fulfill the duties of giving the information, administration or filing of apply? The SZW Inspection may impose an administrative fee of € 20,500 on behalf of the Minister of Social Affairs and Employment.
Employees who have the intention to stay in the Netherlands for longer than four months are required to register in the municipality in which they reside to entry into the Main Register of Persons. If the stay is less than four months? In this case the seconded citizen who is enjoying the freedom of movement of persons shall be released from this duty. While he is in Holland, one should only have a valid passport or ID. In the case of third-country nationals (employees of Ukraine) — they must have valid travel documents and confirmations of legal employment in Poland.
What happen if we fulfill the conditions arising from the Regulation of the European Parliament and of the Council (WE) No. 883/2004 of April 29, 2004. (on the coordination of social security systems)? When a person went to work in Holland for a period not exceeding 24 months he is a subject to Polish social insurance law. Concerning the taxation of persons that have been delegated to the Kingdom of the Netherlands… Here the Convention between the Republic of Poland and the Kingdom of the Netherlands (in effect since February 12, 2002) will be applied. It is used for the avoidance of double taxation and prevention of tax evasion with respect to taxes on income. The salary of an employee who has a residence in Poland as a rule is taxed only in our country. If you work in Holland, then income can be taxed at the place of residence or at the place of work. In this case, we use the method of avoiding double taxation.
Payments for the salary of foreigners delegated to Holland are held only in Poland. But when?
The employee’s salary will be taxed in the Netherlands and Poland, if at least one of these conditions is not met. In this case, you should use the method of avoiding double taxation specified in Art. 23 contracts. In particular, methods of elimination with progression.
From all of this information is understandable that the delegation of foreigners to the Netherlands is legal if you follow the rules and conditions. The same is about personnel from Ukraine that is delegated work in the territory of another EU Member State.
The scope of obligations of the employer mainly depends on the rules stipulated by the state legislation. Therefore, one should consult the internal regulations of the Kingdom of the Netherlands to convince oneself what documents are required. Subject to the principles stipulated in this article we can be sure that we provide our employees with legal residence and work in the territory of Holland.
Dear businessman, do you want to enter the process of delegation of employees to the Netherlands (including workers from Ukraine)? Then you must know that it can be legal and possible for execution. However, keep in mind a number of requirements that must be met.
The recruitment agency WORKSOL has been engaged in recruitment, legalizing of stay, employment and delegation of third-country nationals to EU member states for years! We make all the effort to keep track of the dynamically progressing changes arising from international directives. If you want to make sure that you have knowledge of the current legal status, you can get the information from us and use our help. Always welcome!
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Author of the article “Delegation of foreigners to the Netherlands”:
Natalia Poprava – firstname.lastname@example.org
Translator of the article “Delegation of foreigners to the Netherlands”: