Aim of this little article is to give few insights on basis of the legal framework of labor in The Netherlands, in which seasonal migrant work in agriculture is also attached.

 

A return on legal framework of labor in The Netherlands

 

Legal working time length:

The standard working week (full time) is between 36 and 40h a week (this influences the minimum wage per hour). The legal maximum working day is 12h, and cannot exceed 60 hours in one calendar  week (on a five-day-week basis), and workers cannot  work more than 55 hours a week on average

It has to be given at least 36 hours off in a row every work week (5 days). Longer weeks are possible but in this case, workers have to be given 72h off every 2 weeks. It can be divided into 2 periods but the shorter one must not be shorter than 32h.

As concerns rest breaks:

→ 30 minutes after 5,5 hours of work in a row ; 45 minutes if the working time exceeds 10h, but dividable if each break is at least 15 minutes.

→ 11 uninterrupted hours rest between two working days, and 8 hours if the type of work needed any modification.

 

Minimum wage: (1^st January 2014) (adjusted twice a year):

It is noteworthy that overtime pay as well as holidays allowance must be in addition to, and cannot be a part of the minimum wage.

Gross and in euros                                                      per hours

Age	Per month	Per week	Per day	36h/ week	38h/ week	40h/ week
+ 23 ans	1485,6	342,85	68,57	9,52	9,02	8,57
22 ans	1262,75	291,40	58,28	8,09	7,67	7,29
21 ans	1077,05	248,55	49,71	6,90	6,54	6,21
20 ans	913,65	210,85	42,17	5,86	5,55	5,27
19 ans	779,95	180	36	5	4,74	4,50
18 ans	675,95	156	31,20	4,33	4,11	3,90

According to information available on the Dutch ministry of social affairs and employment

If the wage calculation is based on the number of units, or pieces, workers complete, rather than on the number of hours they work., a normal rhythm must allow to earn the minimum wage.

 

Working contract:

To hire a non-EEA (European Economic Area) national, the employer must prove it was not possible to hire a Dutch or EEA nationals and that he has made sufficient efforts to succeed. Aftermath, a working permit can be provided by national authorities for one year. Therefore, it is not easy for an employer to hire on a legal way extra EEA nationals, also as it is needed to take into account the bureaucracy time.

This situation was typical for Polish workers till 2007, and for Romanian and Bulgarian workers till 1 January 2014, but now they are part of the European free labor market. Nevertheless, workers from Croatia are still obliged to have a working permit for working in The Netherlands. Moreover, the duration of the seasonal working contract is at most, 3 weeks and a half for the non- European Economic Area (non-EEA) nationals.

Nevertheless, if the person takes the “self-employed” status, he can work with his permit residence’s place.

 

These information  concerned the basis legal framework for work and migrant work in the Netherlands. Specific features by sectors and branches can differ, but conditions cannot be worst that this basis.[i]

 

The seasonal migrant work in agriculture, in The Netherlands

 

Specific features in agricultural sector:

There are 2 types of seasonal contracts:

–          One for at most 8 weeks of work:

Someone is allowed, with this contract, to work 38h hours a week in average during 2 months. Hours are paid on the basis of 9,51 euros (gross) per hour. In this seasonal contract, employers do not have to pay social subscriptions (health insurance, retirement, working accident insurance). As regards overtime work, each branche has own bargained rules (there are for instance differences between horticulture in greenhouses and in open fields). Commonly, the overtime work is paid according to the following rules: overtime work is paid on the same basis that normal hours (9,51 euros raw) and their total is increased on 35% for the week’s extra-hours (Monday to Friday), on 50% on Saturday and 100% on Sunday. But in practices, the employers use this kind of contract for more than the allowed length. Indeed, the employers hire seasonal workers with another 6/8 weeks contract, but under the name of another “growing companies” which in fact is the same, or belong to the same.

–          The other type of seasonal working contract is for 6 month:

It is a kind of fixed term contract in which employers have to paid overtime, and social subscriptions and the normal work length is 48 hours per week, on the basis of 9,58 euros gross per hour. Then, overtime work is paid according to the following rules: the first 7 extra-hours are paid on the same basis (as for the normal length in the contract, 48h/week) which the total is increased by 30%, and then, the total of following overtime is increased by 100%, till 60 hours per week, which is the maximum working time per month in this type of contract. In the same way as before, migrant workers often work more and are not paid according to their work, according to Wim Batussen, responsible of the agricultural sector in the FNV Bondgenoten, first independent trade union in The Netherlands[ii].

 

The temporary work agencies hiring:

Employees have to be informed beforehand and by writing paper about the conditions and the place of work. Then, the rules are more or less the same, but the rules are defined by the collective bargaining for temporary agencies. If the hiring agency does not have its own CAO (Collective Labor Agreement), i the one of the grower has to define the rules (for instance the one of the horticulture under greenhouses if the employers is a grower in this sector).

Moreover, people are not allowed to work for a company/grower, where a strike takes place.

In The Netherlands, 50% percent of the migrant work in agriculture is providing by these agencies.

 

Housing conditions:

If employers is offering housing, he can at most, retaining 20% of the minimum wages (and this for the rent, water and energy = for 297,12 euros) (and also 10% = 148,56 euros for the Dutch insurance) (total of 445,68 euros for both insurance and housing, on a minimum wages basis). The employer is responsible for the housing and has to provide an “adequate” housing and municipalities have to monitor and control it. Nevertheless, the controls concern only the safety of the housing, but not their quality. The same rules are applied if the employer is a temporary work agency.

Nevertheless, these do not avoid abuses, as Wim Baltussen confirmed with an example in the Limburg region, where 6 Polish workers lived in a “rotten caravan”, rent by the employer for 50 euros per person and per week. Therefore, the rules are often okay, but in practice it is something completely different.

This minimum rules for housing are also applied in the agricultural sector, but bargaining are ongoing between municipalities, central government and employer trade union (LTO) as the firsts one want to forbid housing of migrant workers in camping sites to avoid all abuses … but LTO does not agreeas it is a cheap way to provide housing for migrant workers[iii].

 

Cheap migrant workforce in agriculture in The Netherlands … few insights

A mean to have cheap work force for employers and growers, is to recover the money given to migrant workers as compensation for their work. According to Wim Baltussen, a way to succeed it is to charge migrant workers with kind of expensive and false services, sometimes even extreme: “For instance, employers supply food for workers for 60 euros a week but in practices there is just bread on a fridge. It’s more or less the same with Dutch courses which just learn very basic notions as how to say good morning, please, goodbye …”. Moreover, workers cannot often escape to these services, especially as concerns food access. Indeed, working days without end don’t let them opportunities to reach a food during opened hours. Therefore, they are almost obliged to resort to these kinds of expensive services. This situation then strengthens the “power” of growers, and increases workers vulnerability.

Another way to have a cheap labor force, more or less legal, is to hire workers on the status of “self-employed”. This status allows workers not to be subjected to the rules of collective agreement (CAO) and minimum wages. It is more or less legal that a worker can take this status: in this case, growers do not hire a worker, they outsource a task, but it appears as a mean to have a cheap labor force[iv]. Nevertheless, this status doesn’t allowed self-employed workers to have only one “client”, to work only for one person, and this should encourage these people to add up contracts.

Another possibility with less advantages but which fit better with a legal way, is to use outsourcing with foreign sub-contractor. This last enterprise is in that case responsible of the work, and the tasks are executed by nationals from outside The Netherlands, which is paid according to the level of life of the origin country of the company. These workers earn nevertheless a bonus as there are sent on temporary assignment, and thus they can earn the minimum wage of The Netherlands. Moreover, this solution is easy. As for instance with a Polish sub-contractor that sends workers in The Netherlands, he has only to obtain a certification delivered by the Polish government, which is also a mean to prove that Polish workers are insured in Poland, and that the company pay social subscriptions as well. And especially, this trick is really profitable for sub-contractor as they don’t pay taxes in The Nertherlands, and the social subscriptions are paid in Poland, on the basis of the Polish minimum income only, not on the bonus. So, this is quite interesting for employers as the Polish minimum income is 370 euros[v]. We then can easily understand why there is foreign outsourcing and particularly why some Polish sub-contractor companies are held by Dutch people …

 

---

[v] http://www.touteleurope.eu/actualite/le-salaire-minimum-en-europe.html