The prohibition on obstacles is an important part of the Allocation of Workers by Intermediaries Act (Waadi), which protects temporary agency workers when entering into an employment contract with the end user after their secondment. According to Article 9a Waadi, a temporary employment company may not create obstacles for the conclusion of an employment contract between the agency worker and the end user. This article explains exactly what the prohibition of obstacles involves, what exceptions there are and how it works in practice.

What does the prohibition of obstacles entail?

The prohibition of obstacles is intended to strengthen the position of agency workers so that they can easily become employees of the client after their secondment. When the secondment (the agency employment) ends, the agency worker must be free to enter into an employment contract with the client without the temporary employment agency imposing restrictions on this.

This means that an agency worker may not be bound by a non-competition or non-solicitation clause that prevents him or her from directly entering into the client’s service. Any clause that constitutes such an obstacle is considered null and void under Article 9a Waadi.

Background and aim of the prohibition of obstacles

The Waadi is intended to protect the position of agency workers and to ensure that they work under comparable conditions to employees who are directly employed by the client. In addition to the prohibition of obstacles, the Waadi stipulates, among other things, that agency workers are entitled to the same conditions of employment as the client’s permanent employees. The prohibition of obstacles is specifically aimed at facilitating the transition from agency work to a permanent job with the client.

The European framework: the Agency Directive

The prohibition of obstacles under the Waadi is largely based on the European Agency Directive, which is designed to protect agency workers in all EU Member States. The Agency Directive requires Member States to take measures to ensure that any obstacle to the conclusion of an employment contract between the agency worker and end user can be nullified. The aim of the Directive is to promote agency workers’ access to permanent contracts of employment.

Application of the prohibition of obstacles: who is protected?

The prohibition of obstacles applies to agency workers, but the concept of “worker” in the Agency Directive is broader than the Dutch definition. According to the Court of Justice of the EU (CJEU), a self-employed person may also fall under the prohibition of obstacles, provided there is an employment relationship where the worker works under the direction of the client and receives remuneration in return. This means that the prohibition of obstacles applies not only to employees with a contract of employment, but also to self-employed persons working through an agency construction.

What are the limits of the prohibition of obstacles?

Although the prohibition of obstacles provides a lot of protection, there are some exceptions:

• Reasonable compensation for recruitment and training: In certain cases, the temporary employment agency may demand compensation from the client if the latter wishes to employ an agency worker. However, this compensation must be reasonable and may only relate to the actual costs of recruitment and training. Standard penalty clauses are not allowed.

• Duration of the agency employment: The longer the agency worker has worked for the client, the less justified it is for the temporary employment agency to charge a fee. After a long period of secondment, it is assumed that the temporary employment agency has already recouped its costs.

What is allowed under the prohibition of obstacles?

Although obstacles preventing the agency worker from entering into an employment contract with the client are not allowed, temporary employment agencies may still charge a fee under certain circumstances. This compensation must be reasonable and relate to the costs that the temporary employment agency has made for the recruitment, secondment or training of the agency worker.

However, it is important that the amount is in proportion to the services provided. The temporary employment agency may, for example, demand compensation for recruitment costs, but not for the lost profit it misses out on because the agency worker is switching to the client.

What happens if the prohibition of obstacles is violated?

If a temporary employment agency violates the prohibition of obstacles by, for example, imposing a non-competition clause on the agency worker, this clause is null and void. In such a case, the agency worker can still enter into service with the end user without any obstacles. It is important that both temporary employment agencies and end users are aware of these rules to avoid unnecessary disputes.

Conclusion

The prohibition of obstacles under the Waadi is a crucial tool to ensure that agency workers have the freedom to enter into an employment contract with the end user after their agency employment. This prohibition ensures that temporary employment agencies cannot set up obstacles, such as a non-competition clause, which prevents the agency worker from entering into service with the client. Although there are a few exceptions, such as reasonable fees for recruitment and training, the general rule is that the transition to a permanent contract of employment must proceed as smoothly as possible.

If you have any questions about the prohibition of obstacles or doubt whether your agency contract complies with the law, please contact the employment law lawyers at Arslan Lawyers for expert advice and guidance.