The obstruction prohibition is an important part of the Placement of Personnel by Intermediaries Act (Waadi), which protects temporary workers when entering into an employment contract with the hirer after the end of their temporary assignment. According to Article 9a Waadi, an employment agency may not create obstacles to the formation of an employment contract between the temporary worker and the hirer. This article explains what the obstruction prohibition exactly entails, what exceptions exist, and how it works in practice.
When does the Waadi apply to the lending of workers?
The Waadi applies as soon as workers, such as temporary workers, are put to work under the direction and supervision of another company (the hirer). It does not matter whether this happens on a structural basis or only occasionally, for example for a temporary job or replacement. Both commercial employment agencies and organizations that only occasionally make personnel available fall under the scope of the Waadi.What does the obstruction prohibition entail?
The obstruction prohibition is intended to strengthen the position of temporary workers, so that after their assignment they can easily enter into employment with the hirer. When the assignment ends, the temporary worker must be free to enter into an employment contract with the hirer without the employment agency imposing restrictions. This means that a temporary worker may not be bound by a non-competition or relationship clause that prevents them from directly entering into employment with the hirer. Any clause that creates such an obstacle is considered void under Article 9a Waadi.May a non-competition or relationship clause be included for other employment agencies?
The obstruction prohibition specifically aims to prevent temporary workers from being hindered in their transition to the hirer after the assignment. This does not mean that all forms of non-competition or relationship clauses are automatically invalid. A clause that prohibits the temporary worker from directly entering employment with the hirer is not permitted and is considered void by law. However, it is in principle possible to include a non-competition or relationship clause in the employment contract that restricts the temporary worker from entering employment with other companies or competing employment agencies (not with the hirer). Such a clause falls outside the scope of the obstruction prohibition under the Waadi. However, such clauses must not go further than necessary and must not unreasonably restrict. Case law examines on a case-by-case basis whether the clause is not too broadly formulated and whether the interests of the temporary worker are sufficiently safeguarded.Background and purpose of the obstruction prohibition
The Waadi is intended to protect the position of temporary workers and ensure that they work under comparable conditions as employees directly employed by the hirer. In addition to the obstruction prohibition, the Waadi stipulates that temporary workers are entitled to the same employment conditions as permanent employees of the hirer. The obstruction prohibition specifically aims to facilitate the transition from temporary work to a permanent position with the hirer.The European framework: the Temporary Agency Work Directive
The obstruction prohibition in the Waadi is largely based on the European Temporary Agency Work Directive, which is designed to protect temporary workers in all EU member states. The Directive requires member states to take measures to ensure that any obstacle to concluding an employment contract between the temporary worker and the hirer can be declared void. The aim is to promote access of temporary workers to permanent employment contracts.Application of the obstruction prohibition: who is protected?
The obstruction prohibition applies to temporary workers, but the concept of "employee" in the Directive is broader than the Dutch definition. According to the Court of Justice of the EU (CJEU), a self-employed person can also fall under the obstruction prohibition, as long as there is an employment relationship where the worker works under the direction of the hirer and receives remuneration in return. This means the obstruction prohibition applies not only to employees with an employment contract, but also to freelancers working through a temporary employment arrangement.Protection also for freelancers in an employment relationship
The obstruction prohibition is interpreted broadly in practice. It covers not only entering into an employment contract, but also the creation of a so-called "employment relationship." An employment relationship exists when someone provides services for another for a certain period, under their direction and supervision, and receives remuneration for this. This is particularly relevant for freelancers: if a freelancer actually worked under the authority of the hirer during the assignment, the obstruction prohibition can also apply to them. In that case, the employment agency may not create obstacles for this self-employed person to start working directly for the hirer after the assignment—not even as a freelancer. This prevents employment agencies from using contractual provisions to obstruct not only employees but also pseudo-self-employed persons in their free access to assignments with the hirer.What are the limits of the obstruction prohibition?
Although the obstruction prohibition offers significant protection, there are some exceptions:- Reasonable compensation for recruitment and training: The employment agency may in certain cases charge a fee to the hirer if it wants to employ a temporary worker. However, this compensation must be reasonable and may only relate to actual costs incurred for recruitment and training. Standard penalty clauses are not permitted.
- Duration of the assignment: The longer the temporary worker has worked for the hirer, the less justified it is for the agency to charge a fee. After a long period of assignment, it is assumed that the agency has already recouped its costs.
Reasonable compensation: what is permitted?
The law does not exclude that the lender (the employment agency) may in some cases be entitled to compensation when the temporary worker transfers to the hirer. However, this is only permitted if it involves a reasonable compensation. In practice, this means the agency may make arrangements with the hirer for compensation for actual recruitment costs incurred, possibly supplemented with a customary profit margin. This compensation must always be proportionate to the costs incurred and what is customary in the market. The duration of the assignment also plays a role: the longer the temporary worker has worked through the agency, the less likely a compensation is still justified.What is permitted under the obstruction prohibition?
While obstacles preventing the temporary worker from entering an employment contract with the hirer are not permitted, agencies can under certain circumstances still charge a fee. This compensation must be reasonable and relate to costs the agency has incurred for recruitment, assignment, or training of the temporary worker. However, it is important that the amount is proportionate to the services provided. The agency may, for example, charge recruitment costs but not for lost profit from the temporary worker's transfer to the hirer. In short: the obstruction prohibition allows room for compensation, but only for actual, demonstrable costs and never as a standard penalty or unfounded loss of profit. This keeps the protection of the temporary worker paramount, while the agency can recover reasonable costs incurred.Practical tips for drafting a lending agreement
To prevent disputes and provide clarity for all parties, it is advisable to include in the lending agreement or general terms and conditions under what circumstances a fee may be owed when a temporary worker transfers to the hirer. Ensure that this compensation:- Is transparent and reasonable The compensation may only relate to demonstrable costs, such as recruitment and training, and must be proportionate to the investment made.
- Does not go further than permitted Avoid formulations that amount to a penalty or compensation for lost profits; these are in conflict with the obstruction prohibition.
- Is clearly described Explicitly state which costs may be recovered and how they are calculated. This prevents subsequent disputes about the amount or legitimacy of the compensation.
- Is aligned with the duration of the assignment Be realistic about the period the temporary worker has worked for the hirer; after a long-term assignment, the right to compensation usually lapses.