SECONDMENT OF EMPLOYEES UNDER THE LAWS OF THE DUTCH CARIBBEAN
A license is required
Employees have a labor relationship with their employer (1st employer); the employer has the authority and power to instruct his employees. However, employees may have been seconded (‘gedetacheerd’) to another employer (2nd employer). The 2nd employer, the entity who receives the seconded employees, in general assigns tasks to the individuals and supervises the completion of such tasks. If the 2nd employer has the authority and power to instruct the employees, several mandatory rules of Netherlands Antilles employment law may then be applicable.
Whether or not the 2nd employer has the authority and power to instruct the employees depends primarily on the agreements and the factual circumstances. Several relevant circumstances are for example (i) whether the employee receives a salary or benefits or whether fees are incurred on an hourly basis, (ii) whether specific instructions or tasks can be given to the employees, (iii) whether the employees provide services on an incidental or a more structural basis, (iv) whether the employees must abide by certain rules and regulations with respect to the work environment or conditions (such as with respect to working hours), (v) whether the employees are required to participate in meetings in which decisions are made with respect to the tasks of the employees etc.
The Netherlands Antilles National Ordinance on the Provision of Workers (‘NOPW’) prescribes that a license is required to provide workers to another party to carry out work against payment. The license may only extend to a maximum period of 12 months.
It is not exactly clear whether the NOPW is applicable in the event that the power to instruct the employees fully remains with the 1st employer and the 2nd employer is a group company. However, adherence could be made to Dutch law, which provides for an exception in these circumstances (in the case of so-called ‘zuivere detachering’ and intra-concern relations).
Karel Frielink
Curacao-based Attorney (lawyer) / Partner
