Drafting an employment agency agreement: this is what belongs in it

Drafting a temporary employment contract involves fully documenting the employment contract between the temporary employment agency and the temporary worker (Article 7:690 of the Dutch Civil Code): parties, position, wages, working hours, the temporary employment clause, the phase classification, and the hirer's remuneration. Because the agency is the legal employer and the temporary worker works for a third party (the hirer), the contract must correctly regulate both the terms of employment and the simplified temporary employment regime of Article 7:691 of the Dutch Civil Code. In doing so, align with the current ABU or NBBU collective labour agreement.

The short answer

• Parties and function: agency as employer, temporary worker as employee, plus the function and place of work at the hirer.
• Agency employment clause: specify whether and how Article 7:691 of the Dutch Civil Code is applied during the first 26 weeks worked.
• Phase classification: name the phase (A/B/C or 1 to 4) according to the ABU or NBBU collective labour agreement.
• Remuneration: include the hirer's remuneration pursuant to Article 8 of the Waadi, including allowances.
• Working hours and termination: establish hours, on-call rules, and the end of the secondment.
• Other clauses: confidentiality, and where appropriate, a reference to the collective labour agreement.

Drafting an employment agency agreement: parties and provision of services

Start with a clear opening. The employment agency is the employer, and the temporary worker is the employee. Stipulate that the employee is made available to a client to work under their supervision and direction. Describe the position, the location, and the start date. Also make it clear that the agency pays the wages and the client only provides day-to-day management. This ensures that the triangle referred to in Article 7:690 of the Dutch Civil Code is properly documented from the start.

Recording the temporary employment clause

The agency work clause is the core of the simplified regime. Pursuant to Article 7:691 of the Dutch Civil Code, you can agree that the agency work contract terminates by operation of law as soon as the assignment ends at the request of the hirer. This clause is permitted during the first 26 weeks worked; this period may be extended by collective labour agreement. Include the following in the contract:

• Whether or not the agency clause applies.
• That the agreement ends if the hirer terminates the assignment.
• How reporting sick during the assignment has consequences, in accordance with the collective labor agreement.
• When the phase with the agency clause transitions into a phase with more security.

The phase division

Specify in the contract which phase the temporary worker is in. The ABU CLA uses phases A, B, and C; the NBBU CLA uses phases 1 through 4. In broad terms: the initial phase is flexible and often includes an agency clause, followed by a fixed term with a limited number of contracts, and finally an indefinite term. Because the agency regime has a broader chain clause than the standard regulation of Article 7:668a of the Dutch Civil Code, a series of contracts only transitions into permanent employment at a later stage. The exact duration and numbers vary per CLA and per year, so refer to the current ABU or NBBU CLA instead of citing fixed figures.

Wages, allowances and the hirer's remuneration

Remuneration is subject to strict rules. Pursuant to Article 8 of the Waadi, the temporary agency worker is entitled to at least the same terms of employment regarding remuneration as regular employees in a similar position at the client company. Therefore, stipulate:

• The periodic wage according to the correct salary scale of the hirer.
• Applicable allowances, such as for overtime or irregular hours.
• Periodic increases and expense allowances.
• Travel time and travel expenses where the hirer's remuneration prescribes this.

An example. A temporary employment agency places a forklift driver at a distribution center. The drivers on permanent contracts receive a shift allowance there. Based on the hirer's remuneration, the temporary worker must also receive the same allowance, even though he is on the agency's payroll.

Working hours, termination and other clauses

Finalize the contract with the practical arrangements:

• Working hours: a fixed number of hours or an on-call arrangement, with the rules for on-calling set out in the collective labour agreement.
• Termination: how the agreement ends, with or without a temporary employment clause, and which notice periods apply in later stages.
• Confidentiality: regarding business-sensitive information of the hirer.
• CLA reference: declare the ABU or NBBU CLA applicable, so that supplementary rules have effect.

Note the separation from the hiring agreement between the agency and the hirer. That is a separate commercial agreement regarding rates, liability, and terms; it does not belong in the employment contract with the temporary worker.

You can find more background on the page about the temporary employment contract, in the explanation of what a temporary employment contract is , and in the article about having a temporary employment contract drawn up.

Honest recommendation

If your agency falls under the ABU or NBBU collective labour agreement and you work with a standard temporary employment clause, you do not need to engage a lawyer for every contract. The collective labour agreement provides templates that already properly regulate the temporary employment clause, phase classification, and hirer's remuneration. Fill these in carefully, keep your Waadi registration with the Chamber of Commerce up to date, and follow the current collective labour agreement.

Do consult a lawyer if you fall outside a collective labour agreement, wish to agree on your own phase structure or deviating remuneration, or if you want to watertight the secondment agreement with clients. Legal review is also advisable before putting the contract into use if there is any doubt as to whether your arrangement truly falls under Article 7:690 of the Dutch Civil Code.

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