|
Confederazione Generale Italiana dei Trasporti e
della Logistica 00198 Roma - via Panama 62 - tel. 068559151-3337909556 - fax 06/8415576 e-mail: |
|
Roma, 27 febbraio
2017
Circolare n. 46/2017
Oggetto: Lavoro – Olanda
– Estensione della disciplina del distacco transnazionale al cabotaggio – Comunicazione IRU del
6.2.2017.
L’IRU ha riepilogato le modalità di applicazione in Olanda
della disciplina del distacco transnazionale e del salario minimo garantito alla luce del recepimento, avvenuto lo
scorso giugno, della direttiva europea n. 2014/67/UE; in particolare l’IRU ha precisato che, per quanto concerne le imprese di
autotrasporto, la disciplina in questione si applica, come in Italia e Belgio, solo
al cabotaggio e non anche ai trasporti internazionali ed al transito.
Si fa
osservare come secondo l’impostazione olandese la misura del salario minimo garantito venga fissata
settore per settore dai relativi contratti collettivi di lavoro; in assenza di
contratti di riferimento si applica un importo fissato per legge pari a 8,96
euro lordi l’ora. Per il settore dei trasporti il salario minimo orario previsto
dal relativo contratto collettivo è pari a 13,91 euro; al riguardo l’IRU ha precisato che, essendo scaduto il predetto contratto,
nelle more del rinnovo dovrà essere osservato l’importo del salario minimo
previsto per legge.
L’IRU infine ha elencato gli obblighi cui per effetto della
normativa in questione sono tenute le imprese straniere che effettuano
cabotaggio in Olanda segnalando che in caso di mancato rispetto degli stessi
sarà applicata all’impresa una sanzione amministrativa fino a 20,5 mila euro:
·
conservazione
dei seguenti documenti attestanti il rispetto del salario minimo olandese:
busta paga, ricevute attestanti l’avvenuto pagamento dello stipendio, contratto
di lavoro, tracciati delle ore di lavoro in Olanda, ricevute attestanti
l’avvenuto pagamento dei contributi previdenziali; non è necessario che i
documenti siano tenuti a bordo del veicolo in quanto gli stessi possono essere
trasmessi digitalmente all’Ispettorato;
nulla è previsto in merito alla necessità di tradurre i documenti in lingua
olandese;
·
comunicazione all’Ispettorato
olandese, in caso di sua esplicita richiesta, delle informazioni necessarie in
merito alla corretta applicazione della direttiva europea 2014/67 sul distacco
transnazionale;
·
nomina di un referente in Olanda presso cui
depositare i predetti documenti e a cui l’Ispettorato può rivolgersi per chiedere
informazioni in merito al distacco;
·
dall’1 gennaio 2018 obbligo di comunicazione preventiva di distacco alle
autorità olandesi da effettuarsi in via telematica.
Fabio Marrocco |
Per riferimenti
confronta circ.ri conf.li nn.
20/2017 e 142/2016
|
Codirettore |
Allegato uno |
|
Lc/lc |
© CONFETRA – La riproduzione totale
o parziale è consentita esclusivamente alle organizzazioni aderenti alla
Confetra. |
Da: Nemec, Jan
[mailto:Jan.Nemec@iru.org]
Inviato: venerdì 10 febbraio 2017 10:50
A: Nemec, Jan
<Jan.Nemec@iru.org>
Cc: Nemec,
Jan <Jan.Nemec@iru.org>
Oggetto:
NL minimum wage law - clarification of the minimum wage level
Priorità: Alta
Distribution group CLTM, CTP,
CAS
Dear Members,
We have received further clarification from TLN on the actual level of the minimum wage in the
Netherlands.
The generally binding decleration of the collective labour agreement in the
Netherlands expired on the 31 December 2016. This means that as long as there
is no new collective labour agreement binding for he sector, the Dutch
minimum wage for cabotage is EUR 8,96 (the standard Dutch minimum). If TLN
and the trade unions negotiate a new collective agreeement and the ministry of
social affairs publishes the generally binding decleration, then the new
collective agreeement wages will apply (currently EUR 13,91).
Best regards
Jan Nemec
Jan Nemec
General Delegate ad interim
IRU Permanent Delegation to
the EU
32-34, av. de Tervueren,
Box 17
1040 Brussels
Belgium
From: Nemec,
Jan
Sent: lundi
6 février 2017 13:43
To: Nemec,
Jan
Cc: Nemec,
Jan
Subject: NL minimum wage law -
information
Importance: High
Distribution group CLTM, CTP, CAS
Dear Members,
Please find attached detailed information on the
new minimum wage law that entered into force in the Netherlands as of 1 January
2017. This overview was kindly prepared by IRU Dutch Member TLN.
Summary of the main provisions:
1. Scope (both freight and passenger)
- cabotage ONLY
-
bilateral international, third country and
transit EXCUDED
2. Pre-registration
-
under construction, electronic system should be operational
as of 1 January 2018
3. Documentation obligation
-
only upon request, employers are obliged to give
to the inspectorate all the information needed for a correct enforcement of
Directive 2014/67
-
the following documents have to be kept
available at the place of work - salary slips including proof that salary has
been transferred to the driver, labor contract, working time overviews (for the
period drivers have worked in The Netherlands) proof of social security. The
documents do not have to be on board of the vehicle, however is
not forbidden. The documents may also be transferred
digitally to the inspectorate.
4. Minimum salary level
- The driver has to be paid according to the
collective agreement level in transport or the Dutch minimum wage level. In the
Netherlands, level for an international driver is €13.91 gross per hour and the
minimum wage level is 8.96 Euro gross per hour
5. Contact person
-
The employer needs to appoint a contact person
in The Netherlands to which the inspectorate can turn to in case of requests
6. Remarks
Please note that the Dutch law is based on the
principle of joint liability and other parties in the supply chain may also be held responsible for its violations. This means
that for example the shipper can be held responsible if the
employer fails to meet the wage standards the driver
is be entitled to.
The IRU Secretariat
continues monitoring the situation and invites Members to report
any infringement case or sent additional clarification/practical questions to jan.nemec@iru.org.
Best regards
Jan Nemec
Jan Nemec
General Delegate ad interim
IRU Permanent Delegation to
the EU
32-34, av. de Tervueren,
Box 17
1040 Brussels
Belgium
Minimum wage in The
Netherlands: present state of play (1 February 2017)
Two new laws in The
Netherlands
1.
The EU posting of workers directive and the enforcement directive have
been transferred into one law in The Netherlands, the so
called WagwEU
(Wet arbeidsvoorwaarden gedetacheerde
werknemers in de EU) as from June 2016. This is the date that every
European member state had to implement the enforcement directive into their own
national law. The Netherlands has done this on time, but the
notification system will only become operational by January 2018 the earliest.
2.
From the 1st
of January 2017
another Dutch law, the so called “Wet Aanpak Schijnconstructies” (WAS)
is introduced. This law doesn’t focus on minimum
wages, but aims to combat bogus constructions by introducing the concept of joint liability.
Both
of these laws are also (partly) applicable to foreign operators and their
personnel when they carry out work (transports) in The Netherlands.
How
and when does it apply to foreign operators
Based
on the WagwEU employers who post their workers to The
Netherlands are obliged to pay their personnel the Dutch minimum wage. If there
is however a Dutch collective labor agreement applicable in the concerning
sector, then the wages of the collective labor agreement apply. The Dutch
transport sector has a collective labor agreement which
is binding for all road transport companies in The Netherlands. As long as this
CAO is binding foreign operators underlie the wages of
the Dutch CAO. If at any time the CAO is not binding anymore (i.e after the duration period of a CAO and e new CAO is not
yet in force) then
the minimum wage applies
However, The Dutch Ministry of Social Affairs has up to now communicated that the posting of workers
directive in transport is only applicable in the case of cabotage.
Bilateral, third country and transit operations do not underlie the Dutch CAO
or minimum wages. That means that according to the present state of play the
Dutch CAO only applies when drivers execute transports within The Netherlands (cabotage)
Next
to the obligated wages also the other elements as described in article 3 of the
posting of workers directive apply:
·
maximum work periods and minimum rest periods;
·
minimum paid annual holidays;
·
the minimum rates of pay, including overtime rates; this point does not
apply to supplementary occupational retirement pension schemes;
·
the conditions of hiring-out of workers, in particular the supply of
workers by temporary employment undertakings;
·
health, safety and hygiene at work;
·
protective measures with regard to the terms and conditions of
employment of pregnant women or women who have recently given birth, of
children and of young people;
·
equality of treatment between men and women on non and other
provisions -discrimination.
What
level of remuneration is to be paid to workers posted
to The Netherlands?
The
driver has to be paid according to the CAO level in
transport or the Dutch minimum wage level. The CAO level for an international
driver is €13.91 gross per hour and the minimum wage level is 8.96 Euro gross
per hour.
When
do foreign transport operators have to comply with the Dutch CAO standard/
minimum wage?
According
to the posting of workers directive a ‘posted worker’ means a worker who, for a
limited period, carries out his work in the territory of a Member State other
than the State in which he normally works. As the phrasing ‘limited period’ has not been defined exactly, the Dutch CAO standard is
applicable when a transport is executed on the territory of The Netherlands.
However,
The Dutch Ministry of Social Affairs has up to now
communicated that the posting of workers directive in transport is only
applicable in the case of cabotage. Bilateral, third
country and transit operations do not underlie the Dutch CAO or minimum wages.
That means that according to the present state of play the Dutch CAO only
applies when drivers execute transports within The Netherlands (cabotage)
There
is however a debate (and also an ongoing important
court case) in The Netherlands about the question if the posting of workers
should also involve international transports. This is not clear yet. That means
that the Dutch position can still change.
What
are the obligations employers have to fulfill?
1.
Only upon request, employers are obliged to give to the inspectorate all the
information needed for a correct enforcement of Directive 2014/67
2.
The following documents have to be kept available at
the place of work:
salary
slips including proof that salary has been transferred to the driver, labor
contract, working time overviews (for the period drivers have worked in The
Netherlands) proof of social security The documents do not have to be on board
of the vehicle, however is not forbidden. The documents may
also be transferred digitally to the inspectorate.
3. Employers are obliged to notify their
personnel in advance, about where, when and who is going to do the transports
in The Netherlands.
Only
cabotage operations have to be
notified. The Netherlands will introduce an electronic register where
drivers can be notified. However, this register is
still under construction and will be ready from 1 January 2018. This means that
up till then foreign companies can of course not
notify their personnel
4.
The employer needs to appoint a contact person in The Netherlands to which the
inspectorate can turn to in case of requests.
Obligation
1, 2 and 4 are already in force and the employer can be sanctioned if he refuses to provide the requested
information.
A
violation of the WagwEU can be
sanctioned with a fine up to 20.500 Euro per infringement.
What
documents do employers from countries other than The Netherlands have to keep
available?
Basically
relevant documents which prove that the driver is paid against the Dutch CAO
standard, like salary slips, proof that salary has been transferred to the
driver, labor contract, working time overviews (for the period drivers have
worked in The Netherlands) proof of social security. The documents do not have
to be on board of the vehicle, however is not forbidden.
The documents may also be transferred digitally to the
inspectorate.
The
Dutch law says nothing about having to translate documents into the Dutch
language.
Is a representative needed?
A
contact person has to be appointed in The Netherlands,
to whom the inspectorate can turn to if information is needed. It is up to the
employer who he wants to appoint, however the contact person must be someone
who has immediate access to the requested documents like salary slips, labor
contracts etc.
Who
is responsible for the right payment (WAS/Joint Liability)
Initially
the employer is to be held responsible for the right
payment. However, the Dutch WAS law foresees in a chain/joint liability,
meaning that also the shipper can be held responsible
if the employer i.e fails to meet the wage standards
the driver should be entitled to. Both parties can be held responsible by the Dutch
inspectorate/enforcers.
Upon
request of the Dutch inspectorate, all documents and information needed to
determine whether the right payment has been done,
should be presented to the inspectorate/enforcers.
Do
self-employed drivers also fall under the scope of the Dutch law
Yes,
but only to a certain extend. They underlie the
obligation to hand over to the inspectorate all necessary documents the
inspectorate wants to check (i.e the check if you are
really an entrepreneur and not a bogus self-employed driver) Again only upon
request, these documents have to be transferred to the inspectorate, also
digitally possible.
If the electronic
notification register is ready, also self-employed drivers are obliged to
register themselves.