General conditions

The legal status and working conditions of the temporary worker are largely laid down and regulated in the ABU’s Collective Labor Agreement for Temporary Workers. The basic principle is that the longer the temporary worker works for the temporary employment agency, the more rights he accrues.

The temporary worker works on the basis of a temporary employment contract with a temporary employment clause, for a fixed period or for an indefinite period. If there is a temporary employment contract with a temporary employment clause, the temporary employment ends as soon as the assignment for the benefit of which the temporary worker has been posted is terminated at the client’s request or the temporary worker reports sick.

If the temporary worker is working on the basis of a fixed-term or indefinite-term temporary employment contract, the termination of the assignment by the client or the temporary worker’s report of illness does not automatically mean the end of the temporary employment contract.

Pursuant to the NBBU collective labor agreement for temporary workers, every temporary worker is directly entitled to the same remuneration as the client’s permanent employee with an equal or equivalent position. This so-called hirer’s remuneration consists of the applicable period wage, ADV (in time or in money), bonuses for overtime, shifted hours, irregularity and shift bonus, initial wage increases, expense allowances and periodicity.

Duration of assignment

In order to be able to supply the temporary employee, the temporary employment agency concludes an assignment contract with the principal to which these General Terms and Conditions apply. The assignment contract will include agreements on (among other things) the position to be held by the temporary employee, the rate and the duration of the assignment.

The temporary employment agency agrees the duration of the assignment with the client to the best of its ability. There are several possibilities:

• an assignment for a specific or determinable period of time in which, in principle, the agreed period cannot be deviated from, unless expressly agreed upon.
• an assignment for an indefinite period of time whereby it is always possible to terminate with due observance of a notice period, unless that possibility is expressly excluded. The temporary employment agency reserves the right to replace the temporary worker or terminate the assignment if the client fails to fulfill its obligations arising from the assignment contract and/or the General Terms and Conditions.

Part A: Introduction

Article 1 Applicability of conditions

1. These general terms and conditions shall apply to all offers, assignments and other agreements of Pro Active Uitzend B.V. insofar as they relate to the supply of temporary employees to clients and/or the recruitment and selection of candidates by order of a client.
2. Any purchasing or other terms and conditions of the client shall not apply.
3. Agreements deviating from these general terms and conditions shall apply only if and to the extent agreed upon in writing.
4. These general terms and conditions shall also be deemed applicable to future legal relationships between the parties, unless these terms and conditions have been amended or modified. In that case the new terms and conditions shall be deemed to apply.
5. These general terms and conditions replace the general terms and conditions of the temporary employment agency of an earlier date.

Part B: Posting of Temporary Workers.

Article 2 Definitions

In these general terms and conditions, the following definitions shall apply:

1. Temporary Employment Agency: the employment agency established in the Netherlands that supplies Temporary Employees to Clients on the basis of an agreement. In this Pro Active Uitzend B.V..
2. Temporary Employee: any natural person who has entered into a temporary employment agreement, within the meaning of Section 7:690 of the Netherlands Civil Code, with the Agency in order to perform work for a third party under the management and supervision of such third party.
3. Client: any natural or legal person that has a Temporary Employee perform work under its management and supervision in the context of an Assignment as referred to in paragraph 4 of this article.
4. Assignment: the agreement between a Client and the Agency pursuant to which a single Temporary Employee, as referred to in paragraph 2 of this article, is supplied to the Client by the Agency to perform work under the Client’s management and supervision, all against payment of the Client Rate.
5. Posting: the employment of a Temporary Employee in the context of an Assignment.
6. Temporary Employment Clause: the written provision in the employment agreement between the Agency and the Temporary Employee and/or in the Collective Employment Agreement to the effect that the employment agreement will terminate by operation of law as a result of the termination, at the Client’s request, of the Supply of the Temporary Employee by the Agency to the Client (Article 7:691(2) of the Netherlands Civil Code).
7. Collective Labor Agreement: the Collective Labor Agreement for Temporary Agency Workers concluded between the Algemene Bond Uitzendondernemingen (ABU) on the one hand and FNV Bondgenoten, CNV Dienstenbond and De Unie on the other hand.
8. Client Rate: the rate payable by the Client to the Agency, excluding surcharges, expense allowances and VAT. The rate is calculated on an hourly basis, unless otherwise stated.
9. Recipient’s Remuneration: the legally applicable remuneration of an employee employed by the Client, working in a position that is equal or similar to the position held by the Temporary Employee. According to the Collective Labour Agreement for Temporary Workers 2004-2009, the Recipient’s Remuneration consists of the following elements:
   
   a. The applicable period wage in the scale;
   
   b. The applicable reduction in working hours (to be compensated in time or money at the discretion of the Agency);
   
   c. Allowances for overtime, shifted hours, irregularity (including holiday allowance) and shift allowance;
   
   d. Initial wage increases, amount and timing as determined with the Principal;
   
   e. Expense allowances (to the extent the Agency can pay them free of payroll taxes and contributions);
   
   f. Periodicals, amount and time as determined with the Principal.
10. Skilled Workers Scheme: The specific provision(s) in the Collective Labour Agreement applicable at the Client’s that relate to the remuneration (as referred to in paragraph 9) of skilled workers and that have been notified to and approved in writing by the parties to the (ABU) Collective Labour Agreement for Temporary Employees and as a result are to be applied from the first day of the Temporary Worker’s period of residence at the relevant Client.
11. Week: the calendar week beginning on Monday at 0:00 a.m. and ending on Sunday at midnight.

1. The Assignment is entered into for a definite or indefinite period of time.
2. The Assignment for a definite period is the Assignment that is entered into:
   1. Either for a fixed period of time;
   2. OR for a determinable period of time;
   3. either for a determinable period not exceeding a fixed period.

   The Assignment for a definite period shall end by operation of law by the expiration of the agreed time or by the occurrence of a predetermined objectively determinable event.

End of Assignment

3. Termination of an Order for an indefinite period of time must be in writing with due observance of a notice period of 14 calendar days.
4. Interim termination of the Assignment for a definite period is not possible, unless otherwise agreed in writing. If interim termination has been agreed upon, termination is possible with a notice period of 14 calendar days. Notice of termination must be given in writing.
5. Each Assignment shall end forthwith at such time as either party shall invoke dissolution of the Assignment because:
   a. the other party is in default;
   b. the other party has been liquidated;
   c. the other party has been declared bankrupt or has applied for a moratorium.
   If the Agency invokes dissolution on any of these grounds, the Client’s conduct (on which dissolution is based) implies the Client’s request to terminate the Supply. This shall not result in any liability on the part of the Agency for any damage suffered by the Client as a result. As a result of the dissolution, the Agency’s claims shall become immediately due and payable.

End of Posting

6. The end of the Assignment shall mean the end of the Supply. Termination of the Assignment by the Client means the Client’s request to the Agency to terminate the current Posting(s) by the date on which the Assignment has been validly terminated or the date on which the Assignment has been validly dissolved, respectively.
7. If the Temporary Worker and the Temporary Employment Agency are subject to the Temporary Employment Clause, the Supply of the Temporary Worker shall terminate at the Client’s request at such time as the Temporary Worker reports that he is unable to perform the work due to incapacity for work. To the extent necessary, the Client shall be deemed to have made such request. If requested, the Client shall confirm such request to the Agency in writing.
8. The Supply shall end by operation of law if and as soon as the Agency can no longer supply the Temporary Employee because the employment agreement between the Agency and the Temporary Employee has terminated and such employment agreement is not consecutively continued for the benefit of the same Client. In such event the Agency shall not have failed imputably vis-à-vis the Client and shall not be liable for any damage suffered by the Client as a result.

Article 4 Replacement and availability

1. The Agency shall be entitled to offer a replacement Temporary Worker during the term of the Assignment. The Client may reject such an offer on reasonable grounds.
2. The Agency shall at all times be entitled to make a proposal to the Client to replace a Temporary Employee posted by another Temporary Employee with a continuation of the Assignment, for the purpose of the Agency’s business or personnel policy, maintenance of employment or compliance with applicable laws and regulations, in particular the dismissal guideline for the temporary employment sector. The Client shall reject such a proposal only on reasonable grounds. If requested, the Client shall confirm and substantiate any rejection in writing.
3. The Agency shall not fail imputably vis-à-vis the Client and shall not be obliged to compensate the Client for any damage or costs if, for any reason whatsoever, the Agency cannot (or can no longer) supply the Client with a Temporary Employee (or a replacement Temporary Employee) in the manner and to the extent agreed in the Assignment or subsequently.
4. If and to the extent that the Temporary Worker is replaced by another Temporary Worker, the hourly remuneration in respect of the replacement Temporary Worker shall be reassessed in accordance with Article 9 of these General Terms and Conditions and the Client Rate shall be adjusted accordingly.

Article 5 Right of Suspension

1. The Client shall not be entitled to temporarily suspend all or part of the Temporary Worker’s employment except in the event of force majeure within the meaning of Article 6:75 of the Dutch Civil Code.
2. Notwithstanding paragraph 1 of this article, suspension is possible if:
   a. this is agreed in writing and the term is laid down and
   b. the Client proves that there is temporarily no work available or that the Temporary Worker cannot be deployed and
   c. the Agency can successfully invoke towards the Temporary Worker the exclusion of the continued payment of wages obligation under the Collective Agreement.
3. If the Client is not entitled to temporarily suspend employment, but temporarily has no work for the Temporary Worker or is unable to employ the Temporary Worker, the Client shall pay the Agency the Client Rate for the duration of the Assignment in full in respect of the most recent or usual number of hours and overtime.

Article 6 Working procedure

1. Prior to commencement of the Assignment, the Client shall provide the Agency with an accurate description of the position, job requirements, working hours, hours of work, duties, place of work, working conditions and intended duration of the Assignment.
2. The Agency shall determine which Temporary Workers it proposes to the Client on the basis of the information provided by the Client. The Client is entitled to reject a proposed Temporary Worker.
3. The Agency shall not be liable if contacts prior to a possible Assignment do not result in the actual Posting of a Temporary Worker.
4. The Agency shall not be liable for any damage as a result of the deployment of a Temporary Employee who turns out not to meet the requirements set by the Client, unless there has been intent or deliberate recklessness in the selection.

Article 7 Hours of work and working hours

1. The scope of work and working hours of the Temporary Worker shall be laid down in the Assignment Confirmation or otherwise agreed upon. The Client shall ensure that statutory working hours are not exceeded.
2. Vacation and leave of the Temporary Worker shall be arranged in accordance with the law and the Collective Agreement.
3. If the Temporary Worker requires specific training or instruction to perform the Assignment, these hours will be charged to the Client as hours worked unless otherwise agreed.

1. Invoicing shall take place on the basis of the method of timekeeping agreed with the Principal and furthermore on the basis of the provisions in the Assignment, by agreement or these terms and conditions. Unless otherwise agreed in writing, timekeeping shall be done by means of claim forms approved in writing by the Principal.
2. The Client and Agency may agree that timekeeping shall be performed by means of a timekeeping system, an electronic and/or automation system or by means of statements prepared by or for the Client.
3. The Client shall ensure that the timekeeping records are accurate and complete and shall ensure or cause to be ensured that the Temporary Employee’s details included therein are correctly and truthfully stated, such as: the Temporary Employee’s name, the number of hours worked, overtime, irregular hours and shift hours, the other hours in respect of which the Client Rate is due pursuant to the Assignment and conditions, any surcharges and any expenses actually incurred.
4. If the Client provides the timekeeping records, it shall ensure that the Agency has the timekeeping records at its disposal immediately following the week worked by the Temporary Employee. The Client shall be responsible for the manner in which the timekeeping records are provided to the Agency.
5. Before supplying the timesheets the Client shall give the Temporary Employee the opportunity to check the timesheets. If and to the extent that the Temporary Employee disputes the data set forth in the time sheet, the Agency shall be entitled to determine the hours and costs in accordance with the Temporary Employee’s statement, unless the Client can prove that the data it has provided are correct.
6. If timekeeping is performed by means of claim forms to be supplied by the Temporary Employee, the Client shall retain a copy of the claim form. In the event of a discrepancy between the timesheet submitted by the Temporary Employee to the Agency and the copy retained by the Client, the timesheet submitted by the Temporary Employee to the Agency shall constitute full evidence for purposes of settlement, subject to evidence to the contrary furnished by the Client.

Article 16 Duty of effort and liability

1. The Agency shall use its best efforts to perform the Assignment properly. If and to the extent that the Agency fails to perform such obligation, the Agency shall, subject to the provisions below in paragraphs 2 and 3 and elsewhere in the General Conditions, be obliged to compensate the Client’s direct damage ensuing therefrom, provided that the Client files a written complaint in that respect with the Agency as soon as possible, but not later than three months after such damage has occurred or has become known, demonstrating that the damage is the direct result of an attributable failure on the part of the Agency.
2. Any liability on the part of the Agency arising from the Assignment shall be limited to the Client Rate to be charged by the Agency to the Client for the performance of the Assignment, such in respect of the agreed number of working hours and the agreed duration of the Assignment up to a maximum of three months. The maximum amount to be paid by the Agency shall in no event exceed the amount to be paid by its insurance.
3. The Agency’s liability for indirect damage, including consequential damage, lost profits, lost savings and damage due to business interruption, shall in all cases be excluded.

Article 17 Intellectual and industrial property

1. At the Client’s request the Agency shall have the Temporary Employee sign a written statement to the effect that – to the extent necessary and possible – all intellectual and industrial property rights in the results of the Temporary Employee’s work shall accrue to or be transferred to the Client. If the Agency owes the Temporary Employee any fee in this respect or otherwise incurs costs, the Client shall owe the Agency an equal fee or costs.
2. The Client shall be free to enter into an agreement directly with the Temporary Employee or to submit to it for signature a statement with respect to the intellectual and industrial property rights referred to in paragraph 1. The Client shall inform the Agency of its intention to do so and provide the Agency with a copy of the agreement or statement drawn up in that respect.
3. The Agency shall not be liable to the Client for any penalty or fine forfeited by the Temporary Worker or any damage suffered by the Client as a result of the Temporary Worker invoking any right of intellectual and/or industrial property or failing to perform the obligations agreed with the Agency and/or Client in this respect.

Article 18 Confidentiality

1. Neither the Agency nor the Client shall disclose any confidential information of or about the other party, its activities and relations that has come to their knowledge pursuant to the Assignment to any third party, unless – and then to the extent – disclosure of such information is necessary to properly perform the Assignment or either of them is under a statutory duty to disclose.
2. At the Client’s request, the Agency shall require the Temporary Worker to observe confidentiality with respect to all information that becomes known or known to him in the performance of the work, unless the Temporary Worker is under a statutory duty to disclose.
3. The Client shall be free to impose a direct obligation of confidentiality on the Temporary Employee. The Client shall inform the Agency of its intention to do so and provide the Agency with a copy of the statement or agreement drawn up in this respect.
4. The Agency shall not be liable for any fine, penalty or any damages incurred by the Client as a result of breach of confidentiality by the Temporary Worker.

Article 19 Verification and retention obligation Principal

1. The Client shall require each Temporary Employee supplied by the Agency to obtain identification prior to commencement of the work and to comply with the legal obligations applicable to the Client in this respect.
2. The Client to whom a foreign national within the meaning of the Foreign Nationals Employment Act is made available by the Agency expressly declares that it is familiar with Section 15 of this Act. The Client shall be responsible for checking the identity document and keeping a copy thereof in its records.

Article 20 Participation

1. The Client shall give the Temporary Employee who is a member of the Agency’s works council or the Client’s works council the opportunity to exercise these participation rights in accordance with laws and regulations.
2. If the Temporary Employee exercises co-determination in the Client’s company, the Client shall also owe the Client Rate for the hours during which the Temporary Employee performs work during working hours or attends training in connection with exercising co-determination.

Article 21 Making things available

1. The Client may not, without the Agency’s written consent, supply items to the Temporary Employee that may also be used for private purposes, such as (but not limited to) a (leased) car or telephone.
2. If the Client acts in violation of the foregoing, all resulting damages, costs and (tax) consequences shall be entirely for the Client’s account and risk.

Part C: Recruitment and Selection

Article 22 Additional definitions Recruitment and Selection.

In addition to the definitions set forth above in Article 2, if and to the extent recruitment and selection is involved, the following definitions shall also apply:

1. Temporary Employment Agency: the employment agency established in the Netherlands, in this case Pro Active Uitzend B.V., which recruits and selects candidates based on an Assignment from the Client for a position vacant at the Client or work to be performed.
2. Candidate: the natural person recruited and selected by the Agency for the Client pursuant to an Assignment.
3. Assignment: the agreement between the Client and the Agency pursuant to which the Agency recruits and selects one or more Candidates.
4. Client: any natural or legal person issuing an Assignment for recruitment and selection to the Agency.
5. Recruitment and Selection: the search and approach of suitable candidates for a vacancy or work at the Client based on information provided by the Client.
6. Fee: the fee payable by the Client to the Agency upon completion of the Assignment for Recruitment and Selection.

1. The Fee to be paid for Recruitment and Selection Assignments consists of a percentage of the all-in gross annual income of the selected Candidate to be determined, as it will apply between the Candidate and the Client after the Candidate commences employment. The all-in gross annual income of the selected Candidate includes all income components, such as annual salary, vacation pay, 13th, 14th and/or 15th month, fixed annual gratuity, profit distribution, commission, guarantee commission and the fiscal addition for items made available (including a car). In calculating the amount of the commission or profit distribution, it is assumed that the objectives to be achieved have been fully achieved. If such a calculation is not possible, an amount of €6,000 per arrangement (profit distribution and/or commission) is added to income.
2. If and insofar as there is a selected Candidate who will perform work and/or services directly for the Client without becoming an employee there, the Fee to be paid for Recruitment and Selection Assignments consists of a percentage to be determined of the Candidate’s all-in rate for the work/services to be performed by him, on an annual basis and based on 40 hours per week. If such a calculation is not possible, the Fee to be paid shall be set at an amount of at least €7,500.
3. The remuneration as referred to above shall include the costs of the selection procedure performed by the Agency. Any additional costs, such as travel expenses incurred by the selected Candidate(s) in connection with the interviews conducted at the Client’s premises, costs associated with any (psychological) tests and advertising costs, shall be borne by the Client.
4. If the Assignment, after the Agency has proposed a selection of one or more Candidates, is withdrawn, the hours already invested shall be charged at a rate of €100, excluding VAT per hour with a minimum of €1,000, excluding VAT.
5. Even in the event of termination of the (employment) agreement or provision of services, the Client is obliged to pay the Fee and any Fee already paid will not be refunded.

Article 24 Effort obligation and choice of Candidate

1. The Agency shall use its knowledge of the labor market to search for a suitable Candidate for the position and/or work to be performed as indicated by the Client. The Agency shall have a best-efforts obligation to the Client in this respect.
2. The Client shall at all times decide for itself whether it wishes to offer an (employment) contract to a Recruitment and Selection Candidate selected by the Agency. The Agency shall in no way be liable for any damage, in the broadest sense, caused directly or indirectly by the Candidate supplied by the Agency.

Article 25 Entering into direct (employment) agreement Candidate

The Client may not employ a Candidate offered or in any way introduced by the Agency or have such Candidate perform work within six months of the withdrawal, lapse, termination or failure of the Assignment for Recruitment and Selection. In the event of breach or non-performance hereof, the Agency shall charge the Client an amount of €7,500, exclusive of VAT, without prejudice to the Agency’s right to claim full damages.

Part D: Final Provisions

Article 26 Prevention of impermissible discrimination

To prevent any unlawful distinction being made, in particular with respect to religion, philosophy of life, political affiliation, sex, race, nationality, heterosexual or homosexual orientation, marital status, handicap, chronic illness, age or any other ground whatsoever, the Client shall not be able to stipulate any non-job-related requirements when providing the information regarding the work to be assigned, nor shall the Agency take any such requirements into account. The Client shall indemnify the Agency against any consequences of any improper distinction made by it.

Article 27 Personal Data of the Temporary Employee and/or Candidate

1. The Client shall keep confidential and process in accordance with the Personal Data Protection Act all registered personal data of a Temporary Employee and/or Candidate disclosed by the Agency before and during the Assignment.
2. The Client will inform the Temporary Employee and/or Candidate of any personal data recorded about him or her and how, when and for what purpose such data will be processed.

Article 28 Payment and consequences of non-payment

1. The Client shall pay each invoice submitted by the Agency within fourteen calendar days of the invoice date. If an invoice is not paid within this period, the Client shall be in default by operation of law without notice of default and shall owe interest of 1% per calendar month.
2. Suspension of payment or set-off is not permitted to the Client.
3. Only payments made to the Agency or to a third party designated by it in writing shall be in full discharge.
4. Complaints regarding any invoice must be submitted in writing to the Agency within fourteen calendar days of the invoice date.
5. If warranted by the Client’s financial position or payment record, the Agency may require an advance payment or security.
6. All judicial and extrajudicial collection costs shall be borne by the Client. The extrajudicial costs amount to 15% of the principal amount due including VAT and interest with a minimum of € 2,500 per claim.

Article 29 Liability of Principal

A Client who fails to perform or improperly performs any obligations under these General Conditions shall be liable to compensate the Agency for all resulting damage, including costs of legal assistance.

Article 30 Applicable law and (partial) (null and void) conditions

1. If one or more provisions of these general terms and conditions are null and void or destroyed, the remaining provisions shall remain in full force and effect.
2. These terms and conditions and all related offers, assignments and agreements are governed by Dutch law.

Article 31 Disputes

All disputes arising from or relating to a legal relationship to which these General Conditions apply shall be settled in the first instance by the competent court of the district in which the Agency’s head office is located.