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Foreign Nationals (Employment) Act: be alert when employing foreign nationals!

Foreign Nationals (Employment) Act: be alert when employing foreign nationals!

If an employer has employees with a non-Dutch nationality perform work, there are at least two obligations requiring the specific attention of employers: the duty to provide proof of identity and the duty to possess a work permit for non-EU nationals. Both the formal employer and the actual employer are subject to these obligations.

Prior to the performance of duties, an employer must dispose of a copy of the identity documents of the employees, both for employees with Dutch nationality and for foreign nationals. Secondly, the employers are subject to the duty to possess a work permit for non-EU nationals. This obligation is in principle applicable to all foreign nationals, with exception to certain EU citizens. However, the duty to possess a work permit for non-EU nationals still exists for Bulgarian and Romanian employees. Both obligations ensue from the Foreign Nationals (Employment) Act [Wet arbeid vreemdelingen or ‘Wav’].

Needless to say, employers that employ foreign nationals, formally or not, are employers within the meaning of Wav. In addition, however, there is still another group of individuals or legal entities that are considered to be employers under Wav. These are individuals or legal entities that have foreign nationals perform work for them directly or indirectly without the foreign nationals being in the employ of the individuals or legal entities. This situation occurs, for instance, if an individual or legal entity has foreign nationals perform work on his/its behalf via a temporary employment agency, a contracting firm, a contractor or a sub-contractor. In that case, not only is the formal employer (i.e. the temporary employment agency or the sub-contractor) considered to be the employer within the meaning of Wav, but also the actual employer (for instance, the hirer or the client). Employers are not always aware of the foregoing. For instance, the identity documents of foreign nationals are usually only stored at the formal employer and the actual employer does not dispose of a copy, whereas he must do so pursuant to Wav. The actual employer can be fined therefor. In addition, a fine can be imposed on the actual employer alone or as well, if the formal employer has neglected to apply for a work permit for non-EU nationals.

The broad concept of employer in Wav does not make it easy for employers. For instance, it is difficult for a client to verify whether the contractor or sub-contractor has handed over copies of identification details to it in respect of all engaged foreign nationals. In addition, a client does not always have an idea of whose services have been engaged for which work and whether the contractor or sub-contractor has taken care of a work permit for non-EU nationals. In sum: whether the actual employer has acted in compliance with the provisions of Wav depends in whole or in part on the behaviour of the formal employer. There is much criticism about this on the part of employers.

Another, oft-heard complaint of employers is the time and paperwork involved in obtaining a work permit for non-EU nationals. However, what employers do not always realise is that under certain circumstances Wav imposes on them another, less drastic duty than the one to possess a work permit for non-EU nationals: the obligation to notify.

Briefly put, the notification means that under certain circumstances no work permit for non-EU nationals is required for cross-border services, but rather that the employer is solely obliged to make the work to be performed and the identification details of the foreign nationals known in advance to UWV WERKbedrijf. This notification procedure is simpler and takes less time, as a result of which it could be more favourable for employers to opt for this procedure. In order to qualify for the notification procedure, however, various conditions must be met. Consequently, the Inspection Service [of the Ministry of Social Affairs and Employment (previously: Labour Inspectorate)] will inspect various circumstances – for instance, if employers are questioned during the inspection – to assess whether the notification conditions have been met.

It is vital that the notification is made prior to the duties being performed. If the notification requirements are met, but an employer nonetheless fails to make the notification in a timely manner, that does not yet, however, mean that the damage (i.e. a fine of € 8,000 per foreign national) has been done in its entirety. After all, the law also provides for the option of making a notification within two weeks of a finable offence being established. If this still happens and if the notification requirements have in fact been met, the Inspection Service will impose a significantly lower total penalty amount of € 1,500 (irrespective of the number of foreign nationals). Needless to say, in that case a timely and full notification must be submitted! In doing so, employers must realise that this lower amount will still be considered to be a fine. In the event of several fines, a case of ‘repetition of an offence’ exists, which at some point could result in an even higher fine and even a financial offence.

In light of the foregoing, it is vital that prior to the performance of the work employers are aware (and otherwise: prior to the moment that they are questioned by the Inspection Service) of the existing notification conditions and the circumstances that are vital thereby.

All in all, the Wav involves a whole lot of considerations, not only because there are administrative acts attached to the procedure for possessing a work permit for non-EU nationals and/or the notification procedure, but also because certain types of employment take place beyond the actual or other employer’s field of vision. In light thereof, employers would do well to draw up a clear, transparent internal policy into which various “checking mechanisms” can be integrated. In addition, the content of the agreements between the various types of employers – such as between the client and the contractor or subcontractor or between the supplier and the hirer – could be an important item for consideration in such a policy.

Frédérique Hoppers

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