Non-Dutch employees working at your company? You have to know what you’re doing!

Last month there were two cases on the (Dutch) national news’s websites. On Tuesday an AD headline showed: “Multiple illegal workers discovered working at constructions sites at Rotterdam”, followed by the NOS on Wednesday with an article named “Inspection: Employments Agencies in the Hague tampering with documents of labour migrants”. The articles don’t just match chronologically, but from a migration law point of view they fit well together too.

In the AD article it seems there are 11 construction employees from outside the EU / EER / Switzerland–  in jargon third country nationals – working at Rotterdam without a work permit. Important detail: the AD mentions in the second paragraph ‘three non-EU citizens and three Ukrainian citizens’. Ukraine is obviously not a member state of the EU. This demarcation is relevant, because the precept for every employer in the Netherlands is: every employee with a third country nationality requires  a valid Dutch work permit or a valid Dutch residence permit allowing him or her to work in the Netherlands. Even if this employee already has one of the mentioned permits, there are some snags. A brief check by a specialist can prevent unnecessary sorrow. For the employer of these 11 construction employees the fine may amount to € 8.000,00 per employee (€ 88.000,00 in total). Not only the direct employer can get a fine like this, but also any other party in the chain. The fact that this implies construction work, the fine can amount in tons.

There is only one situation that does not require a Dutch work permit and that is intra-EU service provision, but you have to understand what you are doing. Intra-EU service provisioning means that there is a service provider based in EU member state 1 who provides services to the service recipient  in EU member state 2.

The main rule established by the Court of Justice of the European Union means that the service provider is allowed to use its own personnel without making a distinction between EU-citizens or legally working third country nationals in EU member state 1. This exemption is the only possibility for third country nationals to work in the Netherlands without a Dutch work permit or residence permit. But for Intra-EU service provision applies: do not use the exemption without the knowledge because the check will not be made in advance, but afterwards by the Inspectorate SZW. At that moment you want to have your organisation sufficiently together.

Even with just EU citizens working for your company you could risk to get a fine. There are obligations for employers that apply for employment of EU citizens like filing a notification using the Postedworkers service. Another obligation for the employer consist of checking and guaranteeing the identity of the employee and more important, being able to prove the identity. A lack of compliance regarding these obligations can also result in a fine of € 8.000,00 for every employee.

In short: do you have a third country national working for your company or in the chain check all the documents. For a specialist, this wouldn’t take up more than a few minutes and could potentially save a lot money and also prevent unnecessary sorrow.