How the Netherlands can take better care of labour migrants from Poland and Spain

During the spring semester of 2020/2021 Master's students of the Fair Work and Equality Law Clinic under supervision of Marlies Vegter and Nuria Ramos Martin, wrote reports concerning the situation in the Netherlands of Polish and Spanish labour migrants respectively. Both reports identify a number of areas in which migrant workers face obstacles. One of these obstacles, the automatic termination of the housing contract due to the termination of the employment contract, has been in the newsExternal link recently.

Report on Polish migrant workers

The report on Polish migrant workers concludes that although the Netherlands complies with the ILO temporary employment agencies Convention and the European Directive on Temporary Agency Work, there are also areas for improvement. Regarding the EU Directive, for example, the report states that the Netherlands only complies with the bare minimum, deviating from the Directive where possible, complicating rather than improving lives of the migrant workers. It recommends a higher level of protection for workers by shortening the so-called Phase A in which contracts are automatically terminated when the worker falls ill and the accommodation is terminated with the contract. In addition, the report recommends to reintroduce the compulsory system of state licensing to eliminate the malicious temporary employment agencies, to disconnect the employment agreement from housing to prevent homelessness in case of dismissal and during UWV procedures and to build a relationship of trust to encourage workers to approach the Inspectorate with complaints.

Report on Spanish migrant workers 

The report on Spanish migrant workers identifies as most important problem the zero-hour contracts containing a temporary employment clause, which function on a ‘no work, no income’ basis. The report also addresses the ILO Private Employment Agency Convention 1997 and identifies certain areas where compliance of the Netherlands is concerning. It also proposes a number of recommendations for achieving compliance in the long term.   

Under the European Directive on Temporary Agency Work (2008/104/EC) some inconsistencies have been identified, for example regarding the possibility for social partners to derogate from the principle of equal treatment relating to pay with no guarantee of ‘an appropriate level’ of protection. Scrutinising the Social Security Coordination Regulations likewise leads to the identification of four practices which seem non-compliant. First, because migrant workers fail to register their Dutch address, the aggregation of unemployment benefits is problematic. Second, the ‘phase A employment contracts’ are not in compliance with the social security coordination schemes on sickness benefits, seeing the lack of offering those benefits. Third, the Dutch system for the coordination of social security of unemployment benefits, sickness benefits and proper administration is non-compliant with the Regulations since migrant workers face unnecessary obstacles in organizing proper administration. Fourth, migrant workers do not have equal access to social security as Dutch nationals, which leads to discrimination. 

Legal framework

Both reports identify as the relevant legal framework the ILO Private Employment Agency Convention 1997 and European Union law (more notably, the Directive on Temporary Agency Work (2008/104/EC), the Revised Posted Workers Directive (2018/957/EU) amending the Posted Workers Directive (96/71/EC) and the Regulations on Social Security such as Regulation (EC) No 883/2004 and Implementing Regulation 987/2009)) and assess whether the Netherlands appropriately implements international and European provisions.

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