Is there an escape route for companies that want to avoid the contractual fee when taking on temporary workers? Often temporary workers must work a minimum number of hours before they can be taken over by the hirer free of charge. Taking over earlier usually results in a contractual fee. One painting company thought it had found a way to get out from under this fee.
The ruling of the Gelderland District Court of December 18, 2024 focuses on the aforementioned situation. What exactly preceded it?
Agency agreements
Temporary employment agency BaanMeesters (also trading under the name SchilderMeesters) concludes a temporary employment contract with painting company A on December 10, 2021. On this contract, a minimum hiring period of 1750 hours is agreed upon. The general terms and conditions of SchilderMeesters are also declared applicable.
The temporary worker resigns in July 2022, having worked 908 hours under the aforementioned contract. On August 1, 2022, the temporary worker enters the employment of painting company B.
Painting company A and B have no legal relationship with each other, but the directors are the same. Moreover, both companies are located at the same address.
On July 21, 2023, the foregoing construction is repeated: Painter Masters enters into a hiring confirmation with painting company B, subject to a minimum hiring period of 2080 hours. The general conditions are also declared applicable to this agreement.
The temporary worker enters the employment of painting company A in January 2024, having worked 725.25 hours under the temporary contract.
Judgment of Subdistrict Court
JobMeesters went to court and claimed compensation for the hours not worked, plus 25% over the hourly rate. Painting company A argues that no group or subsidiary relationship exists between it and painting company B, which allowed the temporary worker to be employed by painting company B.
However, the district judge dismissed painting company A’s reasoning. Although formally there is no group or subsidiary relationship between the companies, both companies have the same directors/shareholders and are located at the same address. This makes the companies so affiliated that they can mutually agree on “shifting” personnel to avoid contractual fees.
All this leads to the conclusion that the claims of BaanMeesters can largely be awarded. The Subdistrict Court orders painting company A to pay €20,961.58, plus the legal costs of €2,745.22.
It can be concluded that this so-called “mouse hole” did not have the desired effect for the painting company.
Information
Are you looking to hire temporary workers or seconded employees and are you subject to contractual restrictions? Jamie Jansen and Richard Ouwerling, employment law specialists at LVH Advocaten, advise you on the options available to you.
