The phase system for agency workers in the Netherlands

An agency worker (uitzendkracht) in the Netherlands builds up employment rights in phases. At first the contract can end automatically when the assignment ends; later that clause disappears, and in the final phase you have a contract for an indefinite period with the agency.

How long each phase lasts follows from the collective agreement (CAO) that your agency applies, not from the statute alone. The most important exception to a “fresh start” is successive employership: if you keep doing the same work through a different agency, your earlier weeks can still count. Below we explain the legal basis, each phase, the counting rules and what you can do if your phase has been calculated incorrectly.

Who is your employer when you work through an agency?

Your employer is the temporary employment agency, not the company where you do the work. The agency employment contract (uitzendovereenkomst) is defined in Article 7:690 of the Dutch Civil Code (BW).

The agency places you with a client, called the hirer (inlener), who directs and supervises your work. The agency pays your wages, deducts tax and social security contributions and is responsible for most of your employment rights. The hirer is responsible for safe working conditions at the workplace.

Besides the Civil Code, two other sources determine your position. The Placement of Personnel by Intermediaries Act (Wet allocatie arbeidskrachten door intermediairs, Waadi) contains the rules on equal pay. And almost every agency applies one of the two collective agreements for agency workers: the ABU collective agreement or the NBBU collective agreement. These agreements contain the phase system.

Your contract or your payslip states which collective agreement applies. Check this first, because the phases, their durations and several of your rights depend on it. For a wider overview of your position as an employee, see our page on Dutch employment law.

What does the law allow in the first phase?

Article 7:691 BW allows the agency and the worker to agree on a lighter regime at the start. The two main features are the agency clause (uitzendbeding) and a delayed application of the rules on successive fixed-term contracts.

The agency clause

Under the agency clause, the employment contract ends automatically when the hirer ends the assignment at its request. No notice, no permission from the Employee Insurance Agency (UWV) and no court decision is needed. For the worker this means that the job and the contract end at the same moment.

The statute limits this clause to the first 26 weeks in which you have worked. A collective agreement may extend that period to a maximum of 78 weeks. Once the period has passed, the agency can no longer rely on the clause, even if your contract still contains it.

Delayed chain rules and wage continuation

The ordinary rules on successive fixed-term contracts in Article 7:668a BW (the chain rules, ketenregeling) only start to apply after the first period of 26 weeks, which a collective agreement can also extend to 78 weeks. Until then, the agency can give you as many fixed-term contracts as it wants without you obtaining an indefinite contract.

In the same period the agency may also exclude your right to wages for hours in which there is no work. This departs from the main rule in Article 7:628 BW that the employer bears the risk of there being no work. After the first period, the main rule applies again unless the collective agreement provides otherwise.

How does the phase system work in the collective agreements?

Both collective agreements divide agency work into three steps: a flexible phase, a phase with fixed-term contracts and a phase with a contract for an indefinite period. The ABU agreement calls them phases A, B and C; the NBBU agreement uses phases 1-2, 3 and 4.

The durations and the maximum number of contracts are renegotiated with every new collective agreement, and have been shortened in recent years. We therefore do not state fixed figures here. The periods that apply to you follow from the collective agreement in force when you worked, which you can find on the websites of the ABU and the NBBU.

Phase A or phases 1-2: the flexible phase

In this phase the agency clause can apply, so your contract can end as soon as the hirer ends the assignment. The collective agreement usually also allows the agency to pay only for hours actually worked.

You still have rights. You are entitled to at least the statutory minimum wage for every hour you work, to holiday pay and holiday leave, to equal pay under the Waadi and, if you become ill, to sickness benefit. The weeks you work count towards the next phase.

Phase B or phase 3: fixed-term contracts

In this phase the agency clause no longer applies. You work on fixed-term contracts with the agency, and if the hirer ends the assignment, the agency must in principle continue to pay your wages until the end of your contract.

A fixed-term contract ends by operation of law on the agreed end date (Article 7:667 BW). The agency may only terminate it earlier if the contract allows interim termination, and then only with permission from the UWV or through the subdistrict court (kantonrechter), as with any other employee.

Phase C or phase 4: indefinite employment

In the final phase you have a contract for an indefinite period with the agency. If there is no assignment for you, the agency must look for suitable work and continue to pay your wages in the meantime, under the conditions of the collective agreement.

Your protection against dismissal is then the same as that of any other employee with a permanent contract. The agency needs a reasonable ground for dismissal under Article 7:669 BW and permission from the UWV or a decision of the subdistrict court.

The phases at a glance

The table below summarises the main differences. Durations are not included because they depend on the collective agreement in force.

Does your count reset when you change agency?

Not if the new agency is a successive employer. If you keep doing the same or similar work, often at the same hirer, the weeks and contracts with the previous agency count for your phase and for the chain rules.

This follows from Article 7:668a(2) BW, which treats contracts with successive employers as one chain if they can reasonably be regarded as each other’s successors with respect to the work performed. Since the Work and Security Act (Wet werk en zekerheid) entered into force in 2015, it no longer matters whether the old and the new employer are commercially linked. What counts is whether the work, and the skills and experience it requires, are essentially the same.

A typical example: an employee works for a year through one agency as a forklift driver at a logistics company. The hirer then switches to another agency, and the employee continues the same work at the same warehouse. The new agency cannot simply start again at the beginning of the first phase; the year already worked must be taken into account.

What about gaps between contracts?

Short interruptions do not restore the lighter regime. Under the statutory chain rules, successive contracts form one chain if the gap between them is six months or less.

The collective agreements contain their own interruption rules for counting weeks in the phases. Under those rules too, a short break generally does not reset the count, while a long break can. Check the interruption rule in your collective agreement if you have not worked for some months.

Are you entitled to the same pay as the hirer’s own staff?

Yes. Under Article 8 of the Waadi, you are entitled to the same wages and other remuneration as employees of the hirer in equal or equivalent positions. This follows from Article 5 of the EU Temporary Agency Work Directive.

In the collective agreements this is worked out as the hirer’s remuneration (inlenersbeloning). It covers the wage scale and periodic increases, allowances for overtime, shifts and irregular hours, and certain expense allowances. You can therefore not be paid less than a colleague doing the same work simply because you work through an agency.

The Netherlands has no general statutory right to overtime pay. Whether you receive an overtime allowance depends on the rules of the hirer, which then apply to you through the hirer’s remuneration.

What happens if you fall ill?

That depends on your phase. In the flexible phase your contract can end with the assignment, after which the UWV or the agency pays sickness benefit under the Sickness Benefits Act (Ziektewet).

In the later phases the agency must continue to pay at least 70 percent of your wages during illness, for up to 104 weeks, under Article 7:629 BW, with at least the minimum wage in the first year. The collective agreement may provide for a higher percentage. A fixed-term contract still ends on its end date, even if you are ill at that moment.

During illness the agency cannot give notice of termination of a contract for an indefinite period (Article 7:670 BW). If an agency tells you that your contract has ended because you are ill while you are past the flexible phase, have this checked straight away.

How can your contract end in each phase?

In the flexible phase the contract ends through the agency clause or at the end of the agreed term. In the fixed-term phase it ends on its end date, and in the final phase only through the UWV, the court or a settlement.

A situation that we regularly see: an employee has worked well beyond the period during which the agency clause may apply, the hirer ends the project and the agency says that the contract has therefore ended. That is incorrect. If the agency clause no longer applies, the contract continues. The employee should immediately confirm in writing that they are available for work and claim continued payment of wages.

In the final phase an agency will sometimes propose ending the employment by mutual consent, in a settlement agreement (vaststellingsovereenkomst). You may sign it, but check the consequences for your unemployment benefit and your transition payment first. Under Article 7:670b BW, you can revoke a written termination agreement within 14 days without giving reasons; if the agreement does not mention that right, the period is three weeks.

Are you entitled to a transition payment?

Usually yes, if the agency ends your contract or does not renew it. Since 1 January 2020 the transition payment (transitievergoeding) is due from the first day of employment, also in the flexible phase.

The payment is set out in Article 7:673 BW. It amounts to one third of a monthly salary for each year of employment, calculated pro rata for shorter periods. When successive employership applies, the years with the previous agency can count for the amount as well.

The payment is not due if the employment ends on your own initiative, for example because you resign, unless the employer’s seriously culpable conduct caused it. If the agency refuses to pay, you must go to the subdistrict court within three months after the employment has ended (Article 7:686a(4) BW). That period is strict: a request filed one day late is inadmissible.

What if your wages are paid late or incorrectly?

You can claim the unpaid amount, a statutory increase and statutory interest. The phase you are in often determines whether wages are due at all, so disputes about your phase are usually also wage disputes.

If the employer pays wages late through its own fault, Article 7:625 BW entitles you to a statutory increase (wettelijke verhoging) of up to 50 percent of the late amount. The court can reduce that increase if it would be unreasonable. In addition, statutory interest is due from the date on which the wages should have been paid (Article 6:119 BW).

A claim for wages becomes time-barred after five years (Article 3:308 BW). Do not wait that long: the longer you wait, the harder it becomes to prove your hours, your assignments and the correct phase.

What can you do if your phase has been calculated incorrectly?

Put your working history on paper, ask the agency in writing to correct your phase and claim what you are owed. If that does not help, you can report the agency to the compliance body of the collective agreements or go to court.

Start by collecting every contract, payslip and email, and note the start and end date of every assignment, including assignments through other agencies. When you move to a new agency for the same work, give the new agency your history in writing before you sign, so it cannot later claim that it did not know.

Then write to the agency. State which phase you believe you are in, how you have calculated this, and what you want: a corrected contract, back pay or continued employment. Set a short deadline for a response.

The Foundation for Compliance with the Collective Agreement for Agency Workers (Stichting Naleving CAO voor Uitzendkrachten, SNCU) monitors compliance with the collective agreements and accepts reports from workers. For individual claims you go to the subdistrict court. If you want to challenge a termination, note that a request to annul a termination or to be reinstated must in principle be filed within two months after the employment ended (Article 7:686a(4) BW).

In summary

• Your employer is the agency; the agency employment contract is governed by Articles 7:690 and 7:691 BW and by the ABU or NBBU collective agreement.
• The agency clause and the delayed chain rules apply for 26 weeks under the statute, which a collective agreement may extend to at most 78 weeks.
• After the flexible phase you receive fixed-term contracts and then a contract for an indefinite period; the exact periods follow from the collective agreement in force.
• Changing agency for the same work does not reset your count if the new agency is a successive employer.
• Act quickly: three months for a transition payment claim and two months to challenge a termination.

Frequently asked questions

The equal treatment rule is based on Directive 2008/104/EC on temporary agency work. Law & More advises agency workers, agencies and hirers on the phase system, successive employership and dismissal.

Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.

How Law & More can help you with this is explained on our employment lawyer page.