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Independent contractors and the Dutch law on allocation of workers by intermediaries (Waadi)

Updated: Aug 9, 2023

The Supreme Court recently rendered a judgment clarifying Article 9a of the Waadi. This article contains the so-called "hindrance prohibition" in the case of temporary employment and implies that the lender may not create any hindrance for the posted worker to start working for the lessee on the basis of an employment contract after his (employment) contract with the lender has ended. The prohibition applies to "regular" employees. In the present case, the question arose whether independent contractors were also covered by the Waadi.


Facts


The lender (an intermediary agency) made a independent contractor available to the lessee. The independent contractor and the lender had entered into an assignment contract that included a non-solicitation clause. This stipulated that the independent contractor was not to be employed by the lessee within 6 months of the end of the assignment contract. The lessee then made the independent contractor an offer containing an employment contract for an indefinite period of time, but the lender invoked the non-solicitation clause. Thus, no employment contract was concluded, but the independent contractor did not agree.


Dispute


The independent contractor went to court and claimed a declaratory judgment that the lender acted unlawfully against him by wrongfully invoking a void non-solicitation clause. The court rejected the claim. The Court of Appeal, on the other hand, granted the claim. The Court of Appeal ruled that the Waadi applies not only to employees who have an employment contract with an employment agency, but also to workers who have an employment relationship with an employment agency. Thus, the hindrance prohibition of Article 9a Waadi applies in full.


The Supreme Court cased. Because Article 9a Waadi is an implementation of the European Agency Work Directive, the definition of independent contractor must also be subject to the Agency Work Directive. Only then can it be said with certainty that an independent contractor also falls within the scope of the Agency Work Directive and therefore Article 9a Waadi. The Supreme Court ruled that a temporary worker within the meaning of the Agency Work Directive is any person who is an employee with an employment contract or employment relationship with an agency. This means that:

  1. The worker performs work and thus provides services for and under the direction of the employment agency for a specified period of time and receives remuneration from the employment agency in return; and

  2. Protection is provided in the relevant Member State by virtue of the work he performs.

However, the Court of Appeal did not consider these criteria where it should have. Accordingly, the Supreme Court set aside the Court of Appeals' ruling and remanded the case.


Conclusion


The Court of Appeal will have to assess whether independent contractors meet the criteria arising from the Agency Work Directive. If this test is successful, the hindrance prohibition in Article 9a Waadi will apply and the non-solicitation clause will be null and void. We will keep you informed.


Want to know more?


Do you have questions about the Waadi or about employment law in general? Feel free to contact one of our lawyers.


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