21 Aug Chain Liability for migrant workers’ unpaid wages in the Netherlands
In the DignityFIRM project we investigate strategies deployed to improve the working conditions of migrant workers in a precarious position. This blog introduces a legal strategy NGO FairWork (not legal experts themselves) deployed to assist a group of Ukrainians in the Netherlands who were not paid their proper wages by the temp agency deploying them.
In its decision of 27 March 2025 the District Court Rotterdam established chain liability for the company that hired them and set some important standards for hiring entities to abide by. Although the case concerned workers in a sector outside the F2F supply chain, the ruling applies equally in the event of temporary agency work in farm to fork sectors, our field of study.
The FairWork Strategy
FairWork is a non-profit organisation dedicated to supports victims of labour exploitation in the Netherlands. In 2023 they sent a complaint to the Labour Inspectorate on abuses taking place at a certain temp agency operating from Limburg. The temp agency deployed Ukrainian workers holding a temporary protection status. It is unclear what happened whith the filed complaint and when investigative journalists followed up, the Labour Inspectorate did not comment (Follow the Money, 2024). At FairWork, they think that if the Labour Inspectorate had taken action earlier, the Polish owner of the temp agency might still have been in the Netherlands and could be held liable. “But when nothing happens with a complaint for such a long time the Inspectorate is lagging. (…)”, says a FairWork Representative. Subsequently the question pops up: “what is the point of reporting it to the labour authorities?” (Follow the Money, 2024). This was also a question raised during a workshop on the topic of employer sanctions held on May 22, 2025 in Nijmegen, where one of the participants noted that, according to the annual report of the Dutch Labour Inspectorate, only 35% of complaints received on unfair working conditions are not followed up by the labour inspectorate (Jaarverslag Nederlandse Arbeidsinspectie 2024, p. 18).
Next, FairWork developed a legal strategy. First, it claimed the outstanding wages from the temp agency, with success. However, the temp agency ignored the court order and did not pay. Next, it successfully assisted two of the workers in filing for bankruptcy of the temp agency (Rechtbank Limburg, in Roermond 13 August 2024, C/03/24/191F, np). Then they went after the hiring company that actually put the workers to work, so higher up in the chain in a civil liability lawsuit over the waged the temp agency had failed to pay the migrant workers. On 27 March 2025, the Rotterdam District Court ruled that the employer must pay the temporary workers their outstanding wages
Temporary Agency Work Directive
Some legal background. Temporary agency workers and comparable employees should be treated equally. This principle is enshrined in Article 5 of the Temporary Agency Work Directive (2008/104 EC), which stipulates that “the basic working and employment conditions of temporary agency workers (…) shall be at least the same as those applicable to them if they had been employed directly by the said undertaking for the same job.” Article 3(f) of the Directive defines the term ‘basic working and employment conditions’ as the working and employment conditions laid down in the user undertaking relating to ‘working time, overtime, breaks, rest periods, night work, holidays and public holidays’ and remuneration”. These articles have been implemented in Article 8(1) of the Dutch WAADI.
In the Randstad Empleo judgment of 22 February 2024 (ECLI:EU:C:2024:156), the Court of Justice of the European Union gave a broad interpretation of the concept of “remuneration” in Article 5 of the Directive. The Court held that the concept of “remuneration” within the meaning of Article 5 of the Directive includes all payments made by an employer to an employee in connection with the performance of work or in connection with the employment relationship.
In a recent judgement by the Dutch Supreme Court (HR 27-09-2024, ECLI:NL:HR:2024:1303, annotated by Verhulp NJ 2025/18) the Supreme Court considers that an interpretation of the term “pay” in Article 8 (1) of the Dutch WAADI in accordance with the Directive means that “the term ‘remuneration” in the Temporary Agency Work Directive must be interpreted broadly and includes in particular all current or future benefits in cash or in kind, provided that these are granted, even indirectly, by the employer to the employee by virtue of his employment, regardless of whether this is on the basis of an employment contract, statutory provisions or voluntarily.” This interpretation of the term “remuneration” is in line with the provisions of Article 157(2) TFEU, to which the ECJ EU also refers in the Randstad Empleo judgment.
The Rotterdam case of the Ukrainian workers
In its judgment, the court examines the hiring companies’ liability in accordance with the chain liability provisions of Section 7:616a(1) of the Dutch Civil Code. This section also implements the Employer Sanctions Directive 2009/52 in the event migrant workers are illegally employed. This was, however, not the case as the workers held a temporary protection status.
Firstly, it had to be established whether the hiring company was indeed the contractor who employed the temporary workers. Higher requirements are imposed on the hirer to substantiate this. The subdistrict court found the hirer’s evidence to be insufficient and ruled that the hirer was the contractor of the temporary employment agency. The hirer argued that the temporary workers had addressed the wrong contracting party. This was apparent from the invoices from the temporary employment agency, which showed a different company name. However, during the hearing, it emerged that some of the invoices had been altered by hand and that they were addressed to different companies. It therefore appeared that the temporary workers had performed work for different companies. Despite the different addressees, the company in question did pay all the invoices from the temporary employment agency. Thus, they were the right party to hold liable.
Secondly, the court held that the hiring entity is only exempt from paying wages if they cannot be blamed for the non-payment. This would be the case if the hirer had taken sufficient measures in advance and afterwards to prevent underpayment. However, the court ruled that this was not the case.
The hiring entity had taken some precautionary measure, which they thought was enough, based on their company size. Although less stringent requirements apply to smaller companies, they must still have taken sufficient measures.
– The hirer checked that the temporary employment agency was certified (SNA keurmerk),
– It was registered with the government Waadi register and had a G account,
– The rate it was due to pay was in line with market conditions.
However, the subdistrict court considered these measures to be insufficient and ruled that the hirer could and should have taken additional measures. For example,
– Rather than relying on a verbal agreement, the hirer could have entered into a written agreement. This could have included provisions regarding compliance with employment conditions.
– The hirer could also have checked whether the temporary employment agency charged VAT properly.
– Had they checked, they might have seen the workers had “service contracts” and not employment contracts, did not receive salary slops, received their money through a Polish bank account; some had been forced to register at the Chamber of Commerce as self-employed, but did not pay taxes as such or invoice them. They could have seen the scam.
The case is especially relevant for what the court finds the hiring company should have done after the workers commenced their activities. Which were insufficient measures. An employee of the company had been aware that wages had not been paid to the workers. The temporary workers had complained to him about this on several occasions. The temporary workers worked under his supervision, and he provided them with instructions, work clothes and tools. The temporary workers spoke Ukrainian and Polish and were therefore able to communicate with this supervision employee of the company in Polish. During the hearing, the company argued that he did not know whether this employee was working for the company. However, the court did not consider this to be sufficient to duck liability.
– Given the complaints, the hiring company should have conducted a further investigation;
– This is particularly so as the temporary workers did not speak Dutch or English, which made it more difficult for them to tell their story – the court thus recognized their vulnerability;
– When signals of non-payment were first detected, the hiring company should have requested information from the temporary employment agency. For example, they could have checked whether the applicable terms and conditions of employment were being applied, whether wages were being paid, and they could have requested proof of payment as supporting evidence.
FairWork and the workers were happy with the decision. To disseminate it, we turned to Prof. Verhulp, a labour law professor University of Amsterdam and regular legal annotator.
Verhulp cheered the initiative saying:
“The outcome is good, but legally speaking not so surprising. More generally, I believe that the legal profession [of labour lawyers] pays too little attention to migrant workers.”
Moreover, he added a critical note saying the stakes could have been raised even higher:
“I would like to point out that temporary agency workers are entitled to exactly the same remuneration as if they were employed by the hiring company, including pension contributions. A quick Google search revealed that the hiring company in this case is covered by the collective labour agreement, which means that temporary workers could also have claimed pension contributions for that sector (which amount to approximately 20% of the wage) and possibly other allowances and contributions to which employees are entitled, whereas only the (lower) wage paid by the temporary employment agency was claimed.”
In short, FairWork and the workers were failed by the Labour Inspectorate. The legal professionals assisting them were successful but could have gone a step further. In a way, they also felt legal scholarship failed them, as the case was – legally speaking – not special enough for an annotation. To do some justice to the enormous efforts of FairWork to bring these kind of cases to court, DignityFIRM gives kudo’s to FairWork and the Follow the Money reporting on it.
FairWork engaged another strategy, which is to assist hiring companies in selecting proper temp agencies only. To this end the developed a checklist https://www.fairwork.nu/2024/11/11/checklist-uitzendbureaus-weet-met-wat-voor-uitzendbureau-u-in-zee-gaat/
They have a very straight forward recommendation for all hiring companies: “Maintain good contact with migrant workers employed by your company and watch out for signs of exploitation.”
In short: Be a decent employer. Also for your temp agency workers. Don’t duck responsibility, don’t look away.
It’s that simple.
Nijmegen 20 August 2025