Will there be a maximum duration for the posting of temp workers?⏰

Dennis

Controle contract (2)

Developments in labour law land continue to follow in rapid succession. At the moment, among others, the bill modernising the non-competition clause, the Personnel Retention Act in the event of a crisis and, last but not least, the Clarification of Assessment of Employment Relationships and Legal Presumptions Act (VBAR Act) are still on the shelf. It seems that this push for revision has not come to an end for the time being. Indeed, Minister Van Hijum has announced that a bill will be introduced in 2025 introducing a maximum period of 36 months for temporary work. After this period, the hiring organisation must make the temporary worker an offer of employment with an open-ended employment contract. This aligns with the chain provision for fixed-term employment contracts.  

This intention for a new policy is based on advice from the Landsadvocaat. Briefly, he gave the minister three possible policy variants: 

1.    Setting a hard maximum time limit in law;
2.    Working with an open standard in the law;
3.    A rebuttable presumption of law.

The minister chose option 1, not so much because it was the best option, but the least bad. One of the reasons why option 2 or 3 was not chosen is that in that situation, the employee would still have to go to court.

The underlying objective is to bring Dutch legislation in line with the European Temporary Agency Workers Directive. It has always been the intention that deployment should be temporary, however, Dutch legislation does not sufficiently guarantee this and the courts can hardly act against any abuse. The aim is therefore to ensure legal equality and certainty, while maintaining sufficient flexibility to use temporary workers. 

What does this mean for temporary employment agencies?

Although there is no final bill yet, for now it is especially important to keep monitoring developments closely. A point that comes to mind here is how this will be shaped in the light of Section 9a(2) Waadi. Will the hirer still have to pay a fee to the temporary employment agency when the temporary worker starts working for the hirer, even if the hirer is obliged to make the temporary worker an offer of permanent employment after 36 months?

These are all questions that come to mind, but the cabinet seems determined to go down this road and to ignore criticism from the ABU and NBBU. 

If you would like advice on this, please contact Dennis Oud, Elke Hofman-Bijvank, Tessa Sipkema or Tim van Riel.

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De Haij & van der Wende

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Dennis Oud

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Erwin den Hartog

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Fleur Huisman

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Petra Lindthout

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Tessa Sipkema

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Gerard van der Wende

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Elke Hofman-Bijvank

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Tim van Riel

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Iris Keemink

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