Working under an employment contract does not necessarily mean that the work itself takes place within the employer’s company. Sometimes the work takes place elsewhere. Moreover, if an employee works specifically through a temporary employment agency under the direction and supervision of another entity, we speak of “temporary agency work”. The entity where the work is performed is then the ‘user company’.
Specific legal provisions apply to temporary agency work to protect temporary agency workers. These rules include, for example, the Wet allocatie arbeidskrachten door intermediairs (Waadi), based on the European Temporary Employment Directive (2008/104/EC).
One of the aims of the Waadi is to prevent temporary workers from being disadvantaged compared to workers employed directly by the user company. Among others, an important provision is Article 9a Waadi, which states that temporary workers may not be prevented from entering into the user company’s s employment after the end of the assignment.
A recent decision of the Court of Appeals in ‘s Hertogenbosch clearly illustrates the importance of a good understanding of the (European) rules on temporary agency work.
An administrative employee of an temporary agency (who was working internally and thus would not perform temporary agency work elsewhere) had been put to work at a scaffolding construction company. Afterwards, he claimed in court that he had also worked there as a foreman under the direction and supervision of the user company. The temporary agency denies this, but the court concludes, based on the company records, that the employee had indeed worked as a foreman, so that he qualified as a temporary agency worker.
The (re)qualification ultimately led to the nullification, of the non-solicitation clause in the employment contract on the basis of Section 9a Waadi, because the clause prevented the employee from joining the user company’s employment. The non-competition clause, however, was upheld.
The fact that the court applied Section 9a Waadi ex officio (without any of the parties invoking it), makes this case extra special. The court felt compelled to this initiative because of a recent ruling by the Court of Justice of the EU, confirming that Article 47 of the EU Charter, which provides for the right to effective legal protection, can be directly invoked in labour relations. This ruling by the Court of Appeals in ‘s-Hertogenbosch marks one of the first cases following this EU development.
Convenient use of employees by a temporary employment agency can unintentionally lead to applicability of the Waadi and similar regulations.
In addition, the wording of relationship clauses is and remains of great importance. Finally, an employer who is not familiar with European law may be in for unpleasant surprises in proceedings.
Do you have a question about temporary work, the formulation of your non-solicitation clauses or the effect of European law on your organisation? Do you have a different question? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact me or one of my specialist colleagues.
Attorney at Law & Partner