If you post staff to another company while remaining their legal employer, it makes no difference matter whether you call it secondment, temporary employment or payroll construction: these situations are subject to special rules under the Workers Allocation by Intermediaries Act. This also applies if a director-major shareholder (DGA) is posted.
Conversely: if you hire workers from another company (secondment company, temp agency or payroll construction), you must also take the Waadi into account.
In practice, this can prove quite complicated: the risks are high, and enforcement is strict. In this article, our experts explain how to limit your risks and avoid fines as a hirer, and how to minimise legal and tax risks as a lender.
The Waadi: clear frameworks for posting labour
The Workers Allocation by Intermediaries Act (Wet allocatie arbeidskrachten door intermediairs, Waadi) is intended to combat fraud and exploitation of workers. Examples are labour exploitation, scam constructions, underpayment, or excessive working hours.
Lenders, such as temporary employment agencies, secondment and payrolling companies, and (sub)contractors of works, are required to register with the Dutch Chamber of Commerce (Kamer van Koophandel, KvK). If you fail to do so as a lender, you risk fines and additional tax assessments.
Additionally, lenders must comply with other employer obligations when posting staff, such as those stipulated by the Working Hours Act and the Minimum Wage and Minimum Holiday Allowance Act. Labour law applies (and specific rules on employment conditions and liabilities often apply to temporary workers). You also need to take into account the collective agreements and employment conditions that apply in the hirer’s company. A hired worker is entitled to comparable conditions of employment as an employee of the hirer in a similar position.
The hirer must also pay close attention
The hirer (for example a client hiring seconded staff) must check in advance whether the intermediary agency has a Waadi-registration. If you fail to do this or the agency is not registered, you run the risk of fines. Moreover, as a hirer, you can be held liable for unpaid payroll taxes, based on ‘hirer’s liability’ (inlenersaansprakelijkheid).
Aside from tax-related and financial penalties, reputational damage is also an important point of attention, both for the hirer (you don’t want to be involved with a fraudulent employment agency) and for the lender (you want to deliver quality, offer certainty and have your business in order).
Does the Waadi also apply to a director-major shareholder?
A director-major shareholder (directeur-grootaandeelhouder, DGA) posting or seconding themselves through their own BV is also subject to the Waadi. As these situations are a false self-employment risk, DGA’s should check carefully whether the required registrations are in order, and risks have been recognised and minimised.
Please note: aside from Waadi consequences, seconding yourself as a DGA through your own BV leads to additional points of attention with regard to e.g. social security and false self-employment. Secondment through your own BV is therefore not always a suitable way to solve self-employment problems, for example. Make sure you seek advice on your position beforehand.
WTTA: stricter rules as of 2027
Stricter rules on posting workers are expected to apply as of 2027. The Posted Workers Supervision Act (Wet Toezicht Terbeschikkingstelling van arbeidskrachten, Wtta) is currently awaiting approval by the Dutch Senate. Read more here about the consequences of this legislative proposal, and the steps you can already take now to prepare for the new obligations.
Certification, trust and control
Our Employment Advisory experts regularly help companies that post staff professionally to organise and optimise their compliance. Together with specialist colleagues from Tax Advisory and others, we provide support in such forms as:
Guidance on organising your business processes in line with applicable standards
Drawing up a Tax Control Framework that allows you to control your tax risks
Assistance with (demonstrable) compliance with the Waadi and other relevant regulations
Advice on labour law matters and your tax position, including risks regarding DGA structures and false self-employment
If you also want to be able to offer your customers and buyers more certainty about your quality and compliance, you may want to consider NEN certification. An independent external party will then assess whether you are in compliance with the legal obligations regarding labour and wage payment. This SNA certificate helps gain clients’ trust and offers them legal protection from hirer’s liability. We would be happy to explain what this entails, and we can help you obtain this certification.
Do you have questions about secondment, the Waadi or your position as a hirer or lender? Or would you like to know more about NEN certification? please don’t hesitate to contact our advisors.
The legislation and regulations in this area may be subject to change. We recommend that you discuss the potential impact of this with your Baker Tilly advisor.
