mr. B.J. (Bart) Maesmr. E.P.W.A. (Elise) Binkon
It has recently become clear that since 1 April 2022, Ukrainian refugees have been allowed to work in the Netherlands as employees, and thus as temporary employees given that, in that case, they are employed by temporary employment agencies. All they have to do is complete a simple registration form and file it with the Employee Insurance Agency UWV two days before they start their job. In this context, we refer to the blog written by our colleagues David Wernsing and Cigdem Özcan dated 31 March 2022. While this sounds simple, which it is to a certain extent, there are formalities and pitfalls to look out for!
We can help you with:
assessing the situation / job seekers / potential employees, temp agency workers, interns, or volunteers (which includes the Placement of Personnel by Intermediaries Act (WAADI) check, etc.)
registering Ukrainian refugees with the UWV for employment, retroactively or otherwise (note: a deadline applies through 15 April 2022)
amending or supplementing your employment contracts, specifically modelled with this target group in mind (particularly the condition subsequent and some other provisions)
providing you with guidance regarding the employee's duty to provide proof of identity and the employer's obligation to verify an employee's identity based on the Dutch Foreign Nationals Employment Act
applying for a residence document in so far as currently appropriate
solving any problems that might arise upon registration in the Dutch Personal Records Database (BRP) and therefore the acquisition of a citizen service number
providing assistance with any inspections by the Dutch Labour Inspectorate
providing general assistance with hiring or having work be performed by nationals, not from the EU/EEA or Switzerland (something we call "third-country nationals" in the jargon)
Paid employment by temporarily protected refugees
First, keep in mind that we are talking about paid employment, so as an employee (or as a temp agency worker, since they are employees who are employed by the temporary employment agency) but not as a self-employed person. This alone is a significant restriction. In addition, refugees must have fled Ukraine in response to Russia's invasion of Ukraine; Ukrainian people that have lived outside of the country for years are therefore ineligible for this scheme. However, the Dutch Immigration and Naturalisation Service (IND) takes the 90- to 180-day grace period for Ukrainian people into account, so the temporary protection also applies to Ukrainian people who were already in the Netherlands during their grace period and cannot return to their home country due to the war. For that reason, the period ended on 27 November 2021 (90 days before 24 February 2022).
Quote from the original EU document which also applies in the Netherlands:
This Decision applies to the following categories of persons displaced from Ukraine on or after 24 February 2022, as a result of the military invasion by Russian armed forces that began on that date:
a. Ukrainian nationals residing in Ukraine before 24 February 2022;
b. stateless persons, and nationals of third countries other than Ukraine, who benefited from international protection or equivalent national protection in Ukraine before 24 February 2022;
c. family members of the persons referred to in points (a) and (b).
Be careful not to generalise
A situation may involve Ukrainians who started working in the Netherlands for a totally different reason, for example, based on the highly skilled migrant scheme or the IT scheme. They could also be employed as intra-EU service providers, in which case they come to provide services in the Netherlands on the instruction of and at the expense of an employer in another EU Member State (for example, Poland) for the recipient of a Dutch service. A situation may also involve refugees that sought refuge in Poland, Romania, or another EU Member State and provide services in the Netherlands from that country. An entirely different regime applies in that case which should be expressly distinguished from this situation. Maes Law is at your service, including in cases like these!
Measures under employment law / residence / registration form
As a prospective employer, you will have to familiarise yourselves with the refugees' situations, as far as possible and however painful it is for them, and put it in writing, preferably in the recitals to the employment contract. You, as the employer, also would do well to monitor their stay. Right now, there is a 180-day grace period for Ukrainian refugees. Normally, this visa-free grace period ranges from 90 to 180 days. If the war does not end relatively soon – which seems an unlikely outcome – the refugees will eventually have to be granted residence documents. In the Netherlands, we tend to venture in the direction of asylum in such cases. With the special EU law basis in mind, we would have preferred a different approach, and as a firm, we made a plea for a regular residence permit.
It is important for you, as the prospective employer, to keep track of this so you can inform your Ukrainian employees and provide them with guidance if any arrangements need to be made. This starts by recording the date of arrival in the EU, and in the Netherlands if this happens at a later date, in the recitals to the employment contract. We advise that you attach a copy of the correct and filled in registration form that was submitted and the confirmation of receipt of this form (the latter will arrive later so you won't have to wait) to the employment contract, as well as a copy you make of the original passport, so you can be sure that it is an authentic copy. The possibility may arise that the registration form has not been fully filled in yet in relation to the aforementioned residence issues or the need to repeat the registration. These are all issues that you should keep an eye on, for example via our website.
The registration form is essentially divided into four parts: (1) employer's details, (2) employee's or prospective employee's details, (3) accommodation details, and (4) details regarding the employment contract. The first three are more or less self-explanatory, but the last part may give rise to questions, in which case it may be advisable to engage an employment law specialist because although this matter concerns Ukrainians, the employment contract will, in principle, be governed exclusively by Dutch law within the context of temporary protection, which thus includes all statutory provisions in the Dutch Civil Code (which cannot be deviated from in the vast majority of cases), the statutory minimum wage or CBA minimum wage, all kinds of contributions and fees based on any CBA that may apply, any mandatory pensions, a minimum of 8% holiday allowance, the Dutch Working Hours Act, the Dutch Working Conditions Act, the salary must be paid by means of a fund transfer, etc.
Unintentional permanent employment contract
Nobody, including the prospective employer, knows how long the protection and therefore free entry into the Dutch employment market will last. As it stands, all of the provisions of Article 6.5 of the Foreign Nationals Employment Implementation Decree 2022 will be in force only until 31 May 2022! This may necessitate the conclusion of a temporary employment contract, but the fourth such contract constitutes a permanent contract by the operation of law, except where temp agency workers are concerned. Regular Dutch employment law applies.
It would be wise for you to include a condition subsequent in the employment contract: the end of the temporary protection then, in principle, also marks the end of the employment contract. While this may sound crude, if the options for legal employment are exhausted and there are no other possibilities (work permit, residence permit as a highly skilled migrant, etc.), everything really does come to an end. You can still have such a person in your employ and pay them a salary, but in actuality, you cannot allow them to work in the Netherlands anymore. Because of this, you will eventually be forced to dismiss your employees, since, despite the statements made by the Chair of the European Commission, we do not believe that Ukraine will be joining the EU any time soon. That said, as a good employer, there is no way that you can anticipate whether your employees will miraculously be allowed to stay.
Note: taking into account our closed system of dismissal, case law on conditions subsequent and precedent is sparse, so there's a chance the aforementioned conditions will not "stick" with the court if the circumstance arises. If you do not include any of these conditions, however, you will be without a leg to stand on and the only remaining option will be to initiate proceedings before the UWV or the Subdistrict Court Judge. While both instances are likely to agree to a termination, since they also have to take into account the consequences of the Dutch Foreign Nationals Employment Act, these proceedings always take some time, during which the employment contract will continue to be in force and therefore the obligation to continue to pay salary will also continue to apply.
Dutch Foreign Nationals Employment Act
Since Ukrainians are still not EUR / EEA nationals, they fall entirely within the scope of the Dutch Foreign Nationals Employment Act – except to the extent they are eligible for this special access to the Dutch employment market. So, if for example they are deployed, seconded, or otherwise employed at another "employer within the meaning of the Dutch Foreign Nationals Employment Act" (read: all parties in a purely linear or purely non-linear employment structure or any combination thereof), then the identification and verification procedure pursuant to Article 15 of the Dutch Foreign Nationals Employment Act will have to be followed, documented and retained. If this is not done, you will have committed an administrative offence that is subject to a penalty of EUR 1,500 per person or for all offences. This would be a waste of your money. As far as this is concerned, also keep an eye on the registration obligation based on the Placement of Personnel by Intermediaries Act (Waadi) when hiring or supplying personnel. It is easy to comply with this obligation, which imposes relatively high penalties upon failure to do so. This, again, would be a waste of money.
The scheme dated 29 March 2022 retroactively applies through 4 March 2022. A transition period applies through 15 April 2022 that allows employers to still register their employees, even if the employment relationship had already commenced on or after 4 March 2022. Starting from 16 April 2022, the regular scheme of Article 2a of the Dutch Foreign Nationals Employment Act will apply: register two business days before the employment commences.
If registration fails to take place or does not take place in due time, this can be qualified as an administrative offence subject to a penalty of "only" EUR 1,500 per temporarily protected refugee. However, we can imagine the Dutch Labour Inspectorate (formerly known as the "SZW Inspectorate") taking the position that a failure to register pursuant to Article 2(1) of the Dutch Foreign Nationals Employment Act "gives new life" to illegal employment, for which the usual fine is EUR 8,000 per foreign national and per employer within the meaning of the Dutch Foreign Nationals Employment Act. The Labour Inspectorate website only mentions "a penalty".
Based on their passport, Ukrainian refugees can be registered in the Dutch Personal Records Database (BRP) in the Municipality where they temporarily stay or reside. They will then also receive their citizen service number (BSN), which you need to pay them their salary and which the refugees need to open a bank account (Bunq Bank is the leading provider in this context and would certainly be our first choice).
While this may not be a regular occurrence, non-Ukrainians that had been lawfully and permanently residing in Ukraine on 24 February 2022 and fled the country could fall within the scope of the temporary protection scheme. This complicates matters, so you need to contact a specialist for this!
Employing all Ukrainians without the requirement of an employment permit will be allowed during a certain period – currently through 31 May 2022 – in the context of employment-based on the new Article 6.5 or in the context of the exemptions included in Articles 3.2 (internship) or 7.8 (volunteer work) of the Foreign Nationals Employment (Implementation) Decree 2022. This had to be specifically provided because this concerns work that is performed without an employment contract being in force, which the Foreign Nationals Employment (Implementation) Decree 2022 does require.
If you want to call on us for assistance or if you have a question or need more information, please don't hesitate to contact our corporate immigration team (David Wernsing, Drenusha Hoxha, Cigdem Özcan, Thom Schot, or Bart Maes) or our employment law team (Elise Bink, Tessa Lust or Kelly van Baarle). We are ready to help you!
Information on the status of Ukrainian nationals is ever-changing. This means that you should keep an eye on our website and the news. This blog was written based on the most recently available information on 13 April 2022. Even though we take the greatest possible care when writing our blogs, no rights can be derived from any of our blogs – including this one – and any liability for any mistakes or incompleteness of information is rejected in advance.