By Ordinance of December 4, 1989 (P.B. 1989, no. 73) making temporary workers available to a third party is legally regulated. This Ordinance regulates the hiring out of temporary workers or the "uitzendwezen". In the Decree of October 25, 1996 (P.B. 1996, no. 139) further conditions have been stipulated for this activity.
So far the Ordinance has only become effective for the Island of Curaçao (as of November 1, 1996). The provisions of the Ordinance do not as yet apply to the other Islands. This does not imply that the hiring out of temporary workers is prohibited on these islands. There exists no legal prohibition of the hiring out of temporary workers on these islands.
All employment agencies in Curaçao must have a permit. A permit must be requested at the Government Administrative Office (“Bestuurscollege”). The Government Administrative Office can give the permit under restrictive conditions and can attach regulations to it.
The hiring out of temporary workers without a permit is punishable by law, as is acting in violation of any legal provisions and conditions, which the permit may impose.
3. When is the hiring out of temporary workers considered?
“Hiring out of temporary workers”, is considered when temporary workers are made available to a third party (= the user enterprise or recipient) for a fee, to perform labour in the third party’s enterprise other than by virtue of a working agreement between third party and temporary worker.
The following does not fall under the Ordinance:
a) Helping hand service (the lending of temporary workers who are in the service of the lender by way of non-profit assistance);
b) Granting of service by the supplier/contractor (the making available of temporary workers for a limited time by the supplier/contractor to an enterprise, where a trade has been delivered or for which a work has been carried out, for which with regard to that trade or work, assignments have to be carried out;
c) Hiring out of temporary workers without a profit motive to the employers concerned, by an organization, which is set up by joint enterprisers, or by an group of employers be if jointly or not with an group of employees.
4. When can a temporary worker be used?
It is not in keeping with good faith within the labour market, for non-temporary work to be performed by temporary workers. That is why temporary workers are only allowed to be put in for work of a temporary nature that is in case of:
1. replacement of a temporarily absent employee;
2. replacement of an employee whose working agreement has been suspended, unless this has to do with a collective labour dispute;
3. temporary filling in of a vacancy due to the termination of a working agreement of a permanent employee in anticipation of the actual commencement of employment of a new permanent employee;
4. accidental increase of work;
5. commencement of new work;
6. urgent work that has to be performed immediately to prevent impending accidents, to organize rescue measures or to repair shortcomings of the material on a installation or to company buildings which can become dangerous to the employees.
5. How long is the hiring out allowed?
A temporary worker can be hired out (placed at the disposal of) for a maximum period of twelve months to the same enterprise.
Two disposals by the employment agency of the same temporary worker to the same enterprise with an interval of less than three months between them, is qualified as one continuous disposal, which can last not longer than twelve months.
Also in case a temporary worker is placed at the disposal of an enterprise as replacement for another worker who earlier was hired out to the same enterprise by the employment agency, both these disposals qualify as one continuous disposal, when the length of the interval between them is less than three months.
6. Relationship of temporary worker, employment agency and user enterprise
If someone signs up with an employment agency to do temporary work, one speaks of a pre-formation contract towards a working agreement. As soon as the temporary worker is hired out for the first time, this is qualified as a working agreement between the employment agency and the temporary worker in the meaning of article 1613a of the Civil Code of the Netherlands Antilles.
This means the employment agency must pay the wages, and not the user enterprise. Regarding the relationship of authority this means that the employment agency has the formal authority over the temporary worker. However, in practice it is the user enterprise, which gives instructions and assignments to the temporary worker.
Furthermore, in principle all legal regulations, which are applicable to the working agreement as meant in article 1613a of the Civil Code of the Netherlands Antilles, are also applicable to the working agreement between the employment agency and the temporary worker. In particular this concerns the Ordinance on Minimum Wages, the Labour Regulation 2000, the Vacation Regulation 1949 and the Severance Pay Ordinance.
Most of the employment agencies have a clause in their contracts that if no work is performed, no wages will be paid ("no work, no pay"). This means that the temporary worker, who is not hired out again after an earlier hiring out, is not entitled to wages even if there is a (continuing) working agreement instead of a pre-formation contract.
Finally the employment agency as employer must deduct income tax and social premiums.
7. The period between two disposals
Two consecutive disposals by the holder of a permit of the same worker to the same enterprise count as one continuing disposal if the interval between the two disposals is less than three months. The same holds true if a worker is hired out to an enterprise as replacement for another worker that was earlier placed at the disposal of the same enterprise, if there are less than three months between the two disposals.
In case the interval between the two disposals is more than three months, than in the period in-between one only speaks of a pre-formation contract towards a (new) working agreement.
8. Some obligations of the employment agency
The employment agency is obligated to conclude the working agreement with the temporary worker in writing.
The employment agency is not allowed to participate in "turnstile-constructions" (draaideur-constructies). This means that the employment agency is not allowed to hire out temporary workers if, in the three months prior to this the latter has had a temporary job working for the user enterprise, while the temporary worker has prior to that temporary service worked as a temporary worker for that enterprise.
Furthermore the employment agency is obligated to pay the temporary worker the same wages and other compensations (e.g. vacation payment, overtime-payment etc.) that are paid to workers, working in an equal or equivalent function, and which are in the service of the user enterprise, unless the wages and other compensations of the temporary worker are regulated by a collective labour agreement of the employment agency or if a collective labour agreement is applicable in the user enterprise where provisions have been made with regard to wages and other compensations for temporary workers.
The employment agency is not allowed to put any obligations or restrictions in the way of the temporary worker concerning the conclusion of a working agreement with an employer other than the employment agency. For example no non-competition clause or indemnification clause is allowed to be put in the working agreement with the temporary worker. The judge does not allow indemnification clauses between the employment agency and the user enterprise, which restrict the user enterprise to let the temporary worker enter in its service.
9. Non-compliance with the Ordinance or the conditions of the permit
If the employment agency does not act in compliance with the provisions of this Ordinance, then according to article 9 of the Ordinance the permit of the employment agency can be revoked. Having an employment agency without permit is a criminal offence.
Criminal proceedings may also be started against both the employment agency and the user enterprise if and as far as they intentionally have not acted in compliance with the provisions of the Ordinance. The sanctions of violation of the provisions of the Ordinance vary from custodial sentences with a maximum of 2 years and/or a pecuniary penalty with a maximum of Naf. 25.000, -. The user enterprise that every twelve months hires temporary workers from different employment agencies for a certain type of work in order to avoid this regulation, can be prosecuted for a criminal offence.
Acting in non-compliance with the provisions of the Ordinance does not lead to the fact that the user enterprise has concluded a working agreement with the temporary worker.
If user enterprises apply "turnstile-constructions", whereby workers are alternately temporary workers in the service of an employment agency and temporary workers in the service of the user enterprise, these will be qualified by the judge as one working agreement between the worker and the enterprise whereby wages must be paid by the enterprise and whereby at the beginning of the fourth contract or after the consecutive agreements have surpassed a period of 36 months the worker automatically will have a labor agreement for an indefinite period (fixed service) with the user enterprise.
10. What is the situation on Bonaire, St. Maarten, Saba and St. Eustatius?
As long as the Ordinance of December 4, 1989 (P.B. 1989, no. 73) has not come into force for these islands, there will be uncertainty about the legal relationship between employment agency and temporary worker.
Generally it is assumed that when a worker registers himself with an employment agency to conduct temporary work, a pre-formation contract towards a working agreement comes about between the employment agency and the temporary worker. This becomes a working agreement for a fixed time period at the moment the temporary worker is effectively hired out for the first time.