Article 1 Definitions
In these general terms and conditions, the following definitions shall apply:
1. Temporary Employment Agency: any natural or legal person that provides temporary workers to clients on the basis of assignments.
2. Temporary worker: any natural person who has entered into a temporary employment contract, within the meaning of Section 7:690 of the Netherlands Civil Code, with a temporary employment agency in order to perform work for a third party under the management and supervision of that third party.
3. Assignment: the agreement between a principal and the temporary employment agency pursuant to which a single temporary employee is placed at the principal's disposal by the temporary employment agency, as referred to in subsection 2 of this Article, in order to perform work in exchange for payment of the principal's rate.
4. Client: any natural or legal person who is a party to the assignment in addition to the temporary employment agency.
5. Posting: the employment of a temporary worker in the context of an assignment.
6. Temporary employment clause: the written provision in the employment contract between the temporary employment agency and the temporary employee and/or in the collective employment agreement pursuant to which the employment contract will end by operation of law if the posting of the temporary employee by the temporary employment agency to the principal ends at the principal's request (Article 7:691 subsection 2 of the Dutch Civil Code).
7. Collective Labor Agreement: the Collective Labor Agreement for Temporary Workers concluded between the ABU (Algemene Bond Uitzendondernemingen) on the one hand and relevant employee organizations on the other hand.
8. Client rate: the rate payable by the Client to the temporary employment agency, excluding surcharges, expense allowances and VAT. The rate is charged per hour unless otherwise stated.
9. Hirer's Remuneration: the hirer's remuneration as defined in the collective bargaining agreement.
Article 2 Scope
1. These general terms and conditions apply to all assignments and other agreements between the temporary employment agency and the principal, as well as to all legal acts aimed at their realization, including offers, proposals, quotations and quotations.
2. Any purchase or other conditions of the Client shall not apply and are expressly rejected by the temporary employment agency.
3. Agreements deviating from these general terms and conditions shall apply only if agreed upon in writing and shall apply exclusively to that assignment.
Article 3 The assignment and the posting
Assignment
1. The assignment is entered into for a definite or indefinite period.
2. Fixed-term assignment is the assignment that is entered into:
- Either for a fixed period of time;
- OR for a determinable period of time;
- either for a definable period that does not exceed a fixed period. The fixed-term assignment shall end by operation of law by the expiration of the agreed time or by the occurrence of a predetermined objectively determinable event.
End of assignment
3. The assignment for an indefinite period of time shall end by written notice given with reasonable notice.
4. Each assignment shall terminate forthwith by reason of termination at such time as either party terminates the assignment because:
- the other party is in default;
- the other party is liquidated;
- the other party is declared bankrupt or has filed for suspension of payments.
If the temporary employment agency terminates the posting on one of these grounds, the principal's conduct on which the termination is based implies the principal's request to terminate the posting. This shall not result in any liability on the part of the temporary employment agency for any damage suffered by the principal as a result. As a result of the termination the claims of the temporary employment agency will be immediately due and payable.
End of posting
5. The end of the assignment means the end of the posting. Termination of the assignment by the principal implies the principal's request to the temporary employment agency to terminate the current posting(s) by the date on which the assignment is validly terminated or the date on which the assignment is validly dissolved, respectively.
6. If the temporary employment clause applies between the temporary employee and the temporary employment agency, the posting of the temporary employee will end at the principal's request at the time that the temporary employee reports that he is unable to perform the work due to incapacity for work. Insofar as necessary, the principal shall be deemed to have made this request. If requested the principal will confirm this request to the temporary employment agency in writing.
7. The posting will end by operation of law if and as soon as the temporary employment agency is no longer able to post the temporary employee because the employment contract between the temporary employment agency and the temporary employee has ended and that employment contract is not subsequently continued for the benefit of the same principal. The principal will inform the temporary employment agency in a timely manner regarding the termination or continuation of the assignment with due observance of Article 6 subsection 1 in order to enable the temporary employment agency to properly and fully comply with its obligations regarding a statutory notice period.
Article 4 Replacement and availability
1. The temporary employment agency is entitled to replace a posted temporary employee at all times. This does not require the principal's consent. The principal will refuse to cooperate in a replacement only on reasonable grounds. If requested the principal will motivate any refusal in writing.
2. The temporary employment agency will not have failed imputably towards the principal and will not be obliged to compensate the principal for any damage or costs if the temporary employment agency is unable or is no longer able to supply the principal with a temporary employee or a replacement temporary employee for whatever reason, or at least is unable to do so in the manner and to the extent that was agreed in the assignment or subsequently.
Article 5 Right of Suspension
1. The principal is not entitled to temporarily suspend all or part of the employment of the temporary worker unless there is force majeure within the meaning of Article 6:75 of the Dutch Civil Code. 2. Notwithstanding paragraph 1 of this Article, suspension is possible if: - the principal demonstrates that there is temporarily no work available or that the temporary worker cannot be deployed and; - the temporary employment agency can successfully invoke the exclusion of the obligation to continue paying wages on the ground of the collective employment agreement towards the temporary worker.
Article 6 Working procedure
1. The principal shall provide the temporary employment agency with the information necessary for the posting prior to the commencement of the assignment, including an accurate description of the position, job requirements, working hours, hours of work, activities, place of work, working conditions and the intended duration of the assignment.
2. On the basis of the information provided by the principal and the capacities, knowledge and skills of the (candidate) temporary employees that are eligible for placement the temporary employment agency will determine which (candidate) temporary employees it will propose to the principal for the execution of the assignment. The principal is entitled to reject the proposed (candidate) temporary worker, as a result of which the posting of the proposed (candidate) temporary worker will not take place.
3. The temporary employment agency will not be in default towards the principal if the contacts between the principal and the temporary employment agency prior to a possible assignment, including a concrete request from the principal to post a temporary employee, do not lead to the actual posting of a temporary employee for whatever reason or not within the term desired by the principal.
4. If the temporary employment agency requires information from the principal in connection with the performance of its obligations under the law or the collective labor agreement, the principal will provide that information to the temporary employment agency free of charge upon its first request.
Article 7 Hours of work and working hours
1. The scope of work and the temporary employee's working hours at the principal will be laid down in the assignment or agreed otherwise. The temporary employee's working hours, working time, break and rest periods shall be equal to the times and hours customary at the principal's place of work unless otherwise agreed. The principal guarantees that the temporary employee's working hours and break and rest times will meet the statutory requirements. The principal shall ensure that the temporary employee does not exceed the legally permitted working hours and the agreed scope of work.
2. Vacation and leave of the temporary worker will be arranged in accordance with the law and the collective bargaining agreement.
Article 8 Company closures and mandatory days off
1. When entering into the assignment the principal must inform the temporary employment agency about any company closure and collectively required days off during the term of the assignment so that the temporary employment agency can, if possible, make that circumstance part of the employment contract with the temporary employee. If an intention to establish a company closure and/or collective mandatory days off becomes known after the assignment is entered into, the principal must inform the temporary employment agency immediately after this becomes known.
Article 9 Job and remuneration
1. Before the commencement of the assignment the principal provides the temporary employment agency with the description of the position to be held by the temporary employee, the corresponding grading and information about all elements of the hirer's remuneration (as regards amount and time: only and to the extent known at that time).
2. The temporary employee's remuneration, including any bonuses and expense allowances, will be determined in accordance with the collective labor agreement (including the provisions regarding the hirer's remuneration) and the applicable laws and regulations, on the basis of the job description provided by the principal.
3. If at any time it appears that that job description and the associated grading do not correspond with the position actually held by the temporary employee, the principal will immediately provide the temporary employment agency with the correct job description and associated grading. The temporary employee's remuneration will be determined anew on the basis of the new job description. The job description and/or grading may be adjusted during the assignment if the temporary worker reasonably claims such adjustment with reference to laws and regulations and/or the collective bargaining agreement. If the adjustment results in higher remuneration the temporary employment agency will be entitled to adjust the temporary employee's remuneration and the principal's rate accordingly. The principal will owe this corrected rate to the temporary employment agency from the time that the temporary employee is entitled to the higher remuneration on the basis of laws and regulations and/or the collective employment agreement.
4. The principal shall inform the temporary employment agency in a timely manner, in any event immediately upon becoming aware of any changes in the hirer's remuneration and any adopted initial wage increases. This paragraph does not apply if and as long as the temporary worker is remunerated in accordance with the collective bargaining agreement remuneration for the allocation group.
5. If and insofar as remuneration is determined for the temporary employee on account of nonclassification, the principal will inform the temporary employment agency in a timely manner and in any event immediately upon becoming aware of a change in the principal's job matrix that results in the position performed by the temporary employee still being classifiable in the principal's job matrix. In that case the remuneration and the principal's rate will be adjusted in accordance with paragraph 3 of this article.
6. Remunerations and surcharges such as those for overtime, travel hours/travel time, physically taxing circumstances, work in shifts or irregularly, at special times or days (including holidays), shifted hours and/or on-call or availability shifts shall be remunerated in accordance with the ABU-CAO and/or other applicable working conditions regulations and shall be passed on to the client.
Article 10 Proper exercise of direction and supervision
1. The principal shall act in the same careful manner with respect to the temporary employee in the exercise of management and supervision, as well as with respect to the performance of the work, as it is bound to do with its own employees.
2. Subject to its consent the principal is not permitted to "on-lend" the temporary employee to a third party; that is to say make him available to a third party for the performance of work under the management and supervision of that third party. A third party is also understood to mean a person or legal entity with which the principal is affiliated in a group.
3. The principal may only employ the temporary employee contrary to the provisions of the assignment and conditions if the temporary employment agency and the temporary employee have agreed to this in writing in advance.
4. Temporary employees may only be employed abroad by a client based in the Netherlands for a limited period of time on condition that the client has organized management and supervision and the employment has been agreed in writing with the temporary employment agency and with the temporary employee.
5. The principal shall compensate the temporary worker for any damage suffered by the temporary worker as a result of any property belonging to him that was used in the context of the assigned work being damaged or destroyed.
6. To the extent possible the principal will take out adequate insurance against liability pursuant to the provisions of this Article. At the request of the temporary employment agency the principal will provide proof of insurance.
Article 11 Working conditions
1. The principal declares that it is familiar with the fact that it is considered an employer under the Working Conditions Act. The principal is responsible towards the temporary employee and the temporary employment agency for compliance with the obligations arising from Article 7:658 of the Dutch Civil Code, the Working Conditions Act and the related regulations in the area of workplace safety, health, welfare and good working conditions in general.
2. The principal is obliged to provide the temporary employee and the temporary employment agency with written information in a timely manner, in any event one working day before the commencement of the work, regarding the required professional qualifications and the specific characteristics of the work place to be taken on. The principal actively informs the temporary employee regarding the Risk Inventory and Evaluation (RIE) used within its company.
3. If the temporary employee sustains an industrial accident or occupational disease the principal shall, if required by law, notify the competent authorities without delay and shall ensure that a written report is drawn up without delay. The report will state the circumstances of the occupational accident or illness in such a way that it can be determined with a reasonable degree of certainty whether and to what extent the occupational accident or illness is the result of the fact that insufficient measures were taken to prevent the occupational accident or illness. The principal informs the temporary employment agency as soon as possible about the industrial accident or occupational illness and submits a copy of the report drawn up.
4. The principal shall compensate the temporary worker for all damage that the temporary worker suffers in the course of performing his or her work if and insofar as the principal is liable for it under Article 7:658 and/or Article 7:611 and/or Article 6:162 of the Civil Code.
5. The principal will take out adequate insurance against liability pursuant to the provisions of this Article. At the request of the temporary employment agency the principal will provide proof of insurance.
Article 12 Liability of client
1. A principal who fails to perform or fails to properly perform the obligations ensuing for it from these general terms and conditions, assignments and/or other agreements will be obliged to compensate the temporary employment agency for any damage ensuing from that failure. The provisions of this Article are of general application, both - supplementary if necessary - with respect to subjects in respect of which the obligation to pay compensation has already been provided for separately in these General Terms and Conditions, assignments and/or other agreements and with respect to subjects in which that is not the case.
Article 13 Principal Rate
1. The principal's rate owed by the principal to the temporary employment agency will be calculated in respect of the hours worked by the temporary employee and/or (if that number is higher) in respect of the hours to which the temporary employment agency is entitled pursuant to the general terms and conditions, assignments and/or other agreements and/or the surcharges owed by the temporary employment agency to the temporary employee. The principal's rate plus the expense allowances that the temporary employment agency owes the temporary worker. VAT will be charged on the principal's rate and expense allowances.
2. The temporary employment agency is entitled to adjust the client rate during the term of the assignment if the costs of the temporary work increase:
- as a result of changes in the collective bargaining agreement or in the wages regulated thereunder, or changes in the collective bargaining agreement and/or employment conditions regulation in force at the client or the wages regulated thereunder;
- as a result of changes in or as a result of laws and regulations, including changes in or as a result of social and tax laws and regulations, the collective bargaining agreement or any binding regulations;
- as a result of a (periodic) wage increase and/or a (one-time) mandatory payment arising from the collective bargaining agreement, the collective bargaining agreement and/or employment conditions scheme and/or laws and regulations in force at the client.
3. If the principal does not agree to pay the adjusted principal's rate pursuant to paragraph 2 and/or Article 9, therein lies the principal's request to terminate the posting.
4. Any adjustment to the principal's rate will be announced by the temporary employment agency to the principal as soon as possible and confirmed to the principal in writing.
5. If due to any cause attributable to the principal the remuneration has been set too low the temporary employment agency will also be entitled to determine the remuneration retroactively and to adjust and charge the principal's rate accordingly with retroactive effect. The temporary employment agency may also charge the principal for that which the principal has underpaid as a result and for any costs that the temporary employment agency has incurred as a result.
Article 14 Invoicing
1. Invoicing takes place based on the method of timekeeping agreed with the client in compliance with these general terms and conditions, assignments and/or other agreements.2
. If no manner of time registration has been agreed the time registration will take place by means of timesheets that have been approved by the principal in writing. The principal and the temporary employment agency may agree that the time registration will take place by means of a time registration system, an electronic and/or automation system or by means of overviews drawn up by or for the principal.
3. The principal will ensure that the timekeeping records are correct and complete and will be obliged to ensure or have ensured that the temporary employee's details included therein are stated correctly and truthfully, such as: the temporary employee's name, the number of hours worked, overtime hours, irregular hours and shift hours, the other hours in respect of which the principal's rate is owed pursuant to these general terms and conditions, assignments and/or other agreements, any surcharges and any actual costs incurred.
4. If the principal provides the timekeeping records it will ensure that the temporary employment agency has the timekeeping records at its disposal immediately following the week worked by the temporary employee. The principal is responsible for the manner in which the timekeeping records are provided to the temporary employment agency.
5. Before the principal submits the timekeeping records it will give the temporary employee an opportunity to check the timekeeping records. If and insofar as the temporary employee disputes the information contained in the timekeeping records the temporary employment agency will be entitled to determine the hours and costs in accordance with the temporary employee's statement unless the principal can demonstrate that the information it has provided is correct. At the request of the temporary employment agency the principal will allow the principal to inspect the principal's original time records and provide the principal with a copy thereof.
6. If the timekeeping is done by means of timesheets to be provided by the temporary employee the principal will retain a copy of the timesheet. In the event of a discrepancy between the timesheet submitted by the temporary employee to the temporary employment agency and the copy retained by the principal the timesheet submitted by the temporary employee to the temporary employment agency will constitute full evidence in respect of settlement unless the principal furnishes evidence to the contrary.
Article 15 Duty of effort and liability of temporary employment agency
1. The temporary employment agency is obliged to make every effort to properly perform the assignment. If and insofar as the temporary employment agency fails to comply with this obligation the temporary employment agency will be obliged to compensate the principal's damage that ensues from that, provided that the principal submits a written complaint in that respect to the temporary employment agency as soon as possible but not later than three months after that damage arises or becomes known and demonstrates that the damage is the direct result of an attributable failure on the part of the temporary employment agency.
Article 16 Intellectual and industrial property
1. At the principal's request the temporary employment agency will have the temporary employee sign a written statement in order to ensure or promote - insofar as necessary and possible - that all intellectual and industrial property rights in respect of the results of the temporary employee's work are or will be transferred to the principal. If the temporary employment agency owes the temporary employee a fee in that respect or otherwise incurs costs the principal will owe the temporary employment agency the same fee or the same costs.
2. The principal is free to enter into an agreement directly with the temporary employee or to submit a statement to it for signature in respect of the intellectual and industrial property rights referred to in subsection 1 of this Article. The principal will inform the temporary employment agency of its intention to do so and will provide the temporary employment agency with a copy of the agreement/statement drawn up in that respect.
3. The temporary employment agency shall not be liable to the principal for any fine or penalty that the temporary worker forfeits or any damage suffered by the principal as a result of the fact that the temporary worker invokes any right of intellectual and/or industrial property.
Article 17 Confidentiality
1. The temporary employment agency and the principal will not provide any confidential information of or about the other party, its activities and relations, which has come to their knowledge as a result of the assignment, to third parties, unless - and then only insofar as - the provision of that information is necessary in order to be able to properly perform the assignment or they are under a legal duty to disclose.
2. At the principal's request the temporary employment agency will oblige the temporary employee to observe confidentiality with respect to everything that comes to his knowledge or awareness while performing the work, unless the temporary employee is under a statutory duty to disclose.
3. The principal is free to impose confidentiality on the temporary employee directly. The principal will inform the temporary employment agency of its intention to do so and will provide the temporary employment agency with a copy of the declaration agreement drawn up in that respect.
4. The temporary employment agency shall not be liable for any fine, penalty or any damages incurred by the client as a result of the temporary employee's breach of a duty of confidentiality.
Article 18 Special obligations regarding identity and processing personal data
1. The principal to whom the temporary employment agency supplies a temporary employee will verify and establish the temporary employee's identity in accordance with the applicable laws and regulations, including but not limited to the Dutch Foreign Nationals (Employment) Act [Wet arbeid vreemdelingen], the Dutch Wav (Wet op de loonbelasting) and the Dutch Compulsory Identification Act [Wet op de identificatieplicht]. The principal will also comply with its obligations in respect of administration and storage.
2. In respect of foreign nationals, the principal expressly declares that it is familiar with the Wav, including that the principal must receive a copy of the document referred to in section 1 subsections 1 to 3 of the Compulsory Identification Act from the foreign national upon commencement of the foreign national's work. The principal is responsible for carefully checking this document, establishing the identity of the foreign national on the basis thereof and including a copy of the document in its records. The temporary employment agency is not responsible or liable for any fine imposed on the principal under the Wav.
3. The principal expressly declares that it is familiar with the applicable laws and regulations regarding the processing of personal data. The temporary employment agency and the principal will enable each other to comply with the aforementioned legislation. Principal will in any event only use the personal data obtained through the temporary employment agency for the purpose for which it was obtained, will not store it any longer than permitted in accordance with the laws and regulations and will ensure adequate security of this personal data.
Article 19 Treatment of temporary worker
1. The principal and the temporary employment agency will not make any prohibited distinctions based on religion, personal beliefs, political affiliation, gender, race, nationality, heterosexual or homosexual orientation, marital status, disability, chronic illness, age or any other grounds whatsoever. Client and temporary employment agency will only impose requirements relevant to the job or have them taken into account when providing or performing the assignment, and in the selection and treatment of temporary employees.
2. The Client shall be familiar with the Whistleblower Act and shall ensure that the temporary worker is given access to the whistleblower regulations in the same manner as its own staff if the Client has or applies such regulations to it.
3. If the principal has a complaints procedure with respect to the treatment of employees, it will ensure that the temporary worker has access to this complaints procedure in the same way as its own staff. This only concerns complaints that do not concern the employment agency's employment practices. All this, insofar as there are no legal obligations otherwise.
Article 20 Participation
1. The principal is obliged to give the temporary employee who is a member of the works council of the temporary employment agency or of the principal's works council the opportunity to exercise these participation rights in accordance with laws and regulations.
2. If the temporary employee exercises co-determination in the principal's company, the principal shall also owe the principal's rate for the hours during which the temporary employee performs work during working hours or takes a training course in connection with the exercise of co-determination.
3. The principal declares that it is aware of its information obligations under the Works Councils Act (WOR) regarding the (anticipated) deployment of temporary employees in its company. If and insofar as the principal wishes to rely on information provided or to be provided by the temporary employment agency in the performance of these information obligations, the provision of information will not go beyond what the WOR requires.
Article 21 Obligations related to the Law on allocation of labor forces by intermediaries
1. The client expressly declares its familiarity with Article 8b of the Law on allocation of labor forces by intermediaries and ensures that temporary workers have equal access to the company facilities or services in its company, in particular canteens, child care and transport facilities, as the employees, employed by its company in equal or equivalent positions, unless the difference in treatment is justified for objective reasons.
2. The Client expressly declares that it is familiar with Article 8c of the Wet allocatie arbeidskrachten door intermediairs (Workforce Allocation by Intermediaries Act) and shall ensure that vacancies arising within its company are communicated to the temporary worker in a timely and clear manner, so that the temporary worker has the same opportunities for an employment contract for an indefinite period of time as the employees of that company.
3. The principal expressly declares that it is familiar with Article 10 of the Netherlands Posting of Workers by Intermediaries Act. The temporary employment agency is not permitted to post employees to the principal or in that part of the principal's company where there is a strike, lockout or company occupation. The principal will inform the temporary employment agency in a timely and complete manner about the intention, commencement, continuation or termination of collective actions organized or unorganized by the trade unions, including but not limited to a strike, lockout or company occupation. In the performance of its supervision and management of the temporary worker, the Client shall expressly not give orders to the temporary worker that will violate Article 10 Waadi. Such as, but not limited to, having temporary workers perform work normally performed by employees who are currently participating in collective actions.
4. The principal expressly declares that it is familiar with Article 12a of the Netherlands Posting of Workers by Intermediaries Act. The principal will provide the temporary employment agency with timely and complete written or electronic information about the terms and conditions of employment prior to the commencement of the posting and thereafter when necessary.
Article 22 Applicable law and choice of forum
1. These general terms and conditions, orders and/or other agreements are governed by Dutch law.
2. All disputes arising from or related to a legal relationship between the parties will be settled in the first instance exclusively by the competent court of the district in which the temporary employment agency's head office is located.
Article 23 Final provision
1. If one or more provisions of these general terms and conditions are null and void or annulled, the remaining provisions of the general terms and conditions, assignments and/or other agreements shall remain in force. The provisions that are not legally valid or cannot legally be applied will be replaced by provisions that are as close as possible to the purport of the provisions to be replaced.
