Non-Dutch employees working in your company? You have to know what you are doing!
Last month, two cases were reported on national (Dutch) news websites. A headline from AD on Tuesday showed: “Several illegal workers discovered working on construction sites in Rotterdam”, followed by NOS on Wednesday with an article titled “Inspection: Employment agencies in The Hague falsify workers’ documents migrants “. The articles not only match chronologically, but from a migration law perspective, they also harmonize well.
In the AD article, it appears that there are 11 construction workers from outside the EU / EER / Switzerland – in the parlance of third country nationals – working in Rotterdam without a work permit. Important detail: the DA mentions in the second paragraph “three non-EU citizens and three Ukrainian citizens”. Ukraine is obviously not an EU member state. This demarcation is relevant, because the precept for any employer in the Netherlands is: every employee with the nationality of a third country needs a valid Dutch work permit or a valid Dutch residence permit allowing him to work in the Netherlands. Even though this employee already has one of the permits mentioned, there are a few hiccups. A brief check by a specialist can prevent unnecessary grief. 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 can the direct employer get a fine like this, but any other part of the chain as well. The fact that this involves construction work, the fine can amount to tons.
There is only one situation that does not require a Dutch work permit and that is the provision of intra-EU services, but you need to understand what you are doing. Intra-EU service provision means that there is a service provider based in EU Member State 1 which provides services to the recipient of the service 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 staff without distinguishing between EU citizens or third country nationals legally working in the state EU member 1. This exemption is the only possibility for third country nationals to work in the Netherlands without a Dutch work or residence permit. But for the provision of intra-EU services applies: do not use the exemption without your knowledge because the control will not be carried out in advance, but subsequently by the SZW Inspectorate. At this point, you want your organization to be sufficiently cohesive.
Even with only EU citizens working for your company, you could risk a fine. There are obligations for employers applying for employment of EU citizens, such as filing a notification using the posted workers service. Another obligation for the employer is to verify and guarantee the identity of the employee and above all, to be able to prove the identity. Failure to comply with these obligations may also result in a fine of € 8,000.00 for each 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, it wouldn’t take more than a few minutes and could potentially save a lot of money and also avoid unnecessary heartache.