1

回答    ：在您的雇主沒有為您申請勞工許可的情形下持商務簽證是不允許在荷蘭工作的。一種例外的情況是，您進行商務談判或者
             代表位于荷蘭境外的客戶與公司或組織簽訂商業合同。這種例外只能限定在4個星期的時間範圍內。懲罰的方式有罰款或監
             禁，還包括其他方式，例如公司被有條件監管，公司還有可能會被停業一年。法官可以決定採取更具體的措施。如果簽證的
             持有人沒有取得工作許可即開始工作，他將不得在荷蘭繼續停留，即使三個月的期限還沒有到。雇主則要為非法雇傭勞工而
             負責並接受嚴厲的處罰。每雇一個非法勞工，雇主會被處以行政罰款11.250歐元（如果雇主是一家公司）。公司的主管會被
             處以最高6個月的監禁。如果雇主屢次非法雇傭勞工，公司可能被解散。如果雇主知道或者應當知道雇員沒有工作許可，罰
             金可以最高達到 45.000,-歐元，主管最高可被監禁1年。因為非法雇傭勞工是經濟重罪，除上述處罰外，還可以適用特別措
             施。此外，荷蘭稅務部門將向公司徵收至少6個月的所得稅。

回答    ：唯一對非法雇用勞工負法律責任的是雇主，除了答案1提到的可能的後果之外，雇員不會因為非法雇用勞工而受到刑事處
            罰。根據荷蘭法律，雇員的勞工合同仍保持有效，如果雇主是一個公司，其主管可能會被追究非法雇用勞工的責任，不僅僅
           是刑事責任，還會有民事責任。

問題3：雇員用商務簽證工作時被有關部門查到後會有什麼後果？是否會有不良記錄妨害將來進入荷蘭？

回答：雇員不會被罰款，但可能會被驅逐出境並在將來不得入境。一般的政策是未來三年內不得入境。這一項政策並沒有法條依
據，但通常會是理由不明地遭到拒簽。如果要上訴，簽證處會拖延上訴程序，針對該政策並無有效的應對方式。

回答：社會事務與勞工局的勞工監察部門負責該項事務，並由其他部門協助，如警察局和外僑警察局。

問題5：如果一家公司從前雇用商務簽證的持有者進行工作，現在希望依法用工，是否會因為以前的行為而遇到麻煩？

回答：這個問題很難確切回答。雇用外國人的法律沒有說指明將來可能產生的後果，所以將來的任何申請都應被視為“正常”的申
請。問題在於，按照懲罰的嚴重程度，雇主是否還能夠自由從事商業活動。

荷蘭的民法典規定，法定最低年假的時間應相等與每週約定的工作小時數的4倍。如果是全職的工作（每週40小時），法定假日則歸結為每年最少20天。當然，遇到半職工作或工作不滿一年的情況時，該法定的最低天數將按照比例減少。

雇主和雇員可以在勞工合同中約定更長的年假，約定的天數不能少於民法典及/或集体合同的規定。

根據荷蘭民法典，每年雇主必須給與雇員實際休完最低法定年假的機會（全職工作時為20天）。

除非勞工合同的約定或集体合同的規定有所不同，公司應根據雇員的意願準假，除非雇主由重要的原因不能遵從雇員的意志。如果雇主在收到雇員的書面休假申請後2週内仍然沒有答覆，雇員有權按照自己的意願度假。

如在勞工合同（或集體合同）中無相反的規定，雇主不得強迫雇員休假。根據雇主的需要，我們強烈建議在勞工合同中加入這種排除性的規定。

根據荷蘭民法典，當前年度節省的任何假期將轉入下一年度。根據荷蘭民法典的時效規定，沒有使用的假期於假期產生之年後第5年的12月31日失去法律效力。舉例：2003年沒有使用的假期將在2008年12月31日丢失。

勞工或集體合同中如果有諸如如果假期在某一時間内沒有使用將會丟失的條款都是無效的。

如果僅按照法律的規定，而在勞工合同或集体合同中沒有設定排除條款，可能出現雇員大量積攢假期，然後在某一時間使用過長的假期的情形。

在勞工合同終止時，所有沒有休完的假期都應以現金形式按照合同終止之日的時薪向雇員作出補償。這樣可能因爲工作時薪的上漲導致雇主必須支付高於假期產生時的時薪。

雇主使用的會計規則可能強制雇主在資產負債表中預留出產生的假期和雇員未使用的假期，這種預留不得限制薪金的上漲。

許多公司感到有必要避免雇員大量積攢未使用的假期。有兩種可行的方式，也可以二者結合。

在勞工合同中，雇主即可以規定雇員每年在某一時間段内休假，比如在8月，或者設計一種靈活的方式使得公司有權支配雇員的假期，而無須考慮雇員的要求。

既然休假實際上是從緊張工作的疲勞之中恢復的一種手段，那麽在勞工關係存續期間，任何用現金的方式補償未使用的假期的做法都僅限於有限的天數。如果在勞工合同中沒有特殊的安排，雇主只能在取得了雇員同意之後才能用現金補償未使用的假期。因此我們強烈建議在勞工合同中加入一項特殊條款，使得雇主每年可以自主地以現金補償某些多餘的假期。

Foreign companies sometimes make mistakes in The Netherlands, intentionally or unintentionally. For example, personnel from mother companies sometimes work for the Dutch offices without the necessary permit. If the Dutch labour inspection authorities have discovered this, the company and its leading managers in question may be held responsible for the deed and be punished accordingly.

We prefer prevention measures in advance to dealing with legal consequences afterwards. However, as a newly established foreign company in The Netherlands, one may not necessarily be aware of all the legal regulations. In order to prevent making mistakes and be held liable, one may contact the Dutch authorities to clarify the legal situations of certain aspects, and try to conclude understandings with these authorities. In other words, even laws are sometimes not clear or straight forwards enough. The authorities always have certain room to give explanations or to make different arrangements. Many permits too are also arranged during meetings between companies and the Dutch authorities. Therefore, if you feel unsure about certain matters, always ask for clarity, and probably arrangements, so that mistakes or “illegal conducts” can be prevented in advance. The only important point here is one should ask the right questions in order to get the right answer.

Many companies do not take preventive measures and mistakes are often made. However, if a company discovers that it has made a mistake, it should immediately adjust its conduct. Suppose the authorities have already discovered such misconduct but have not yet taken any measures, the company in question should, with its legal advisor, get in touch with the relevant authorities to make a deal for an understanding on the mistake and acceptance for the correction measures. However, since misconduct can be termed very differently under the law, the seriousness of such misconduct and its legal consequence can vary enormously. Depending on the nature, at lease the nature of the altitude of the Dutch authorities as well as the nature of the particular authorities involved, how to deal with these authorities need to be carefully studied.

The authorities are entitled to undertake routine administrative investigations. During such a process, the company in question is obliged to fully cooperate and submit all necessary information. In this phase, it is possible to make deals with the authorities on the adjustments and correction measures for unintended mistakes, or mistakes caused by lack of knowledge or even certain negligence. However, the danger is that in case during this process the discoveries of the authorities become so serious that it becomes a criminal case, the submitted information can be used against both the company and the leading managers.

Suppose certain misconduct cannot be adjusted, and criminal legal consequences may be looming, it is always important for the company and its leading managers in question to take immediately measures to prevent the worse possible consequence. In such a situation, the suspect is legally entitled to remain silent on any issues which maybe disadvantageous to his position. In case of doubt, always consult your lawyer first, and never make any comments without having studied the consequences.

問題8: 長期合同員工有其JOB DESCRIPTION，但是因身體狀況或者是工作表現不佳，請問公司可以改變工作性質嗎？
如果本人不同意，如何解決此問題？

回答: 在雇傭合同期間，存在‘工作性質’被更改的可能。總體來說，這項變更在征得雙方同意的情況下是最容易操作的，而單方的變
        更意向則相對很難執行。由於員工身體狀況的原因而可能發生的工作性質被更改，荷蘭的相關法律（荷蘭民法典）規定了一項
        義務：雇主和員工的再調整義務。其中對雇主設定了很多嚴格的限制。有時，員工現有工作崗位的重新調整是無法避免的。
        如果由於員工的健康問題，而導致其無法從事調整後的新工作崗位，雇主應當爲員工提供公司裏另外合適的職位，如果本公司
        沒有合適的職位，則應當提供在其他公司合適的職位。這一法律問題，很難給出總體性的建議，只有提供具體的個案，才能給
        出相關的具體建議。由於工作表現不佳，或是確實無法完成其現有工作，則雇主在相關的情況下，可以單方面決定將員工調至
        其他工作崗位。關於這一點，在這一封郵件裏是無法詳細介紹清楚的，具體的意見一定要根據相關的案件才能提供。原則上
        說，被調整後的職位對於員工來說一定要是“合適的職位“，並且不應該降職。但是這一原則也有其例外情況。總體來講, 違背
       員工的意向，而試圖單方面改正員工工作崗位的行爲經常會導致員工告稱病假，只會使得形式惡化，所以應該另尋解決方法。
       （例如如果有可能，則終止雇傭合同。）

回答：這個問題，您需要向專門的移民法律師詢問。所以對於無法回答此問題，我們深表歉意。

問題10: 自2004年以後，企業負責生病員工薪資從2003年的一年改成兩年，如果員工在生病其間合約到期，公司不再續聘，
公司仍要繼續負責嗎？

回答：公司向生病員工支付工資的義務，止于雇傭合同到期之日。所以如果合約到期，公司不再對生病員工負責。

             解決最好方式請建議及確定此規章範圍：儘管公司負責生病員工的期限從52周變爲104周，但是此規章的範圍及具體規定和
             舊規章的規定是一樣的。此外，在員工生病第二個階段（53周到104周），雇主不會提供高於DCC （荷蘭民法典）7：629
             條款所規定的工資數額。在員工生病的第一個階段，也就是前52周，雇主可以支付高於此比例的薪酬。（這一條經常由雙
             方達成共識，寫進單獨的合同或者是可執行的集體協商合同）     　

Provided that the written employment contract is properly drafted, fixed term contracts terminated by operation of law upon expiry of the agreed period. Giving notice of termination to the employee is therefore not necessary and should be avoided at all times. If the employer nonetheless gives notice of termination to the employee, such notice will be void and will thus not have the desired effect, in the absence of prior consent by the CWI (Centrum voor Werk en Inkomen; Centrum for Work and Income).

Interim termination (i.e. termination as per a date falling prior to the expiry of the initially agreed period) at the initiative of the employer can be achieved by three methods:

1. Instant dismissal for an urgent cause. This is actually a very specific form of giving notice of termination, whereby no prior CWI-consent will be required and whereby the notice will have immediate effect (i.e. no notice period). Please note that an urgent cause will only exist under exceptional circumstances.

2. Giving notice of termination with due observance of the applicable notice period. This method of termination can only be used if the written employment contract allows for “interim termination” (in other words, the possibility of interim termination should be explicitly stated in the written employment contract). If the written employment contract allows for interim termination, the employer will require prior CWI-consent, before giving notice of termination. In order to obtain CWI-consent the employer will need to demonstrate a valid reason for termination. Since the procedure for obtaining CWI-consent may take approximately 6 weeks and since the employer will have to observe the applicable notice period, this method of termination is often useless in case the remaining duration of the fixed term contract is short.

3. Rescission of the employment contract by the court upon the request of the employer. This method of termination may be used even if the written employment contract does not allow for interim termination. Again, in order to obtain rescission of the employment contract, the employer will need to demonstrate a valid reason for termination. If the court feels that there is a valid reason for termination, the court will rescind the employment agreement as per a certain date. The court will set the formal date of termination at its sole discretion.

Below please find an indication of the costs associated with each of the three methods of interim termination indicated above:

1. Assuming that the formalities with respect to an instant dismissal are properly met and that an urgent cause really existed, the employer will only be obliged to pay salary up to the formal date of termination of the employment and will not be obliged to pay any severance. In case the formalities are not met and/or no urgent cause existed, the employee may choose to either nullify the notice of termination (in which case the employment will be deemed not to have ended, in which case the obligation to pay salary will continue) or to accept the termination of employment and instead demand damages (severance) for unfair dismissal.

2. Assuming that the employment contract allows for interim termination and assuming that the employer obtained prior CWI-consent, the employment contract will formally terminate upon expiry of the notice period. The employer will have to continue payment of salary up to the formal date of termination of the employment. The main rule is that the employer will not be obliged to pay any additional severance. However, depending on the circumstances, the employee may successfully claim damages (severance).

3. If the court rescinds the employment contract, it may at its sole discretion award severance to the employee. The amount of severance to be awarded depends on the circumstances of the case. One of the factors determining the amount of severance will be whether or not the written employment contract explicitly allows for interim termination. If the written employment contract does not explicitly allow interim termination, the severance awarded by the court will usually be equal to the amount of “missed” salary (i.e. the salary that the employee could have earned over the period between the formal date of termination of the employment as set by the court on the one hand and the initially agreed termination date of the fixed term employment contract on the other hand).

As a general rule, any damages/severance awarded to an employee will not be higher than the “missed salary” as defined above. Exceptions to the rule may occur in case of breach by the employer of the principles of good employership.

Please note that an employer and an employee may, with certain limitations, conclude consecutive fixed term contracts. The main rule is that a maximum of three consecutive fixed term contracts, with a total duration not exceeding 36 months, may be concluded. If properly structured, each of those three fixed term contracts will, upon expiry of the agreed period, terminate by operation of law. Please note that previous periods, during which the employee worked for the company through a temp agency (“uitzendbureau”) will be taken into account. Please also note that if the parties tacitly extend their employment relationship (i.e. without any explicit agreement in that respect), the initial fixed term contract will be deemed terminated as per the initially agreed final date and a subsequent (new) employment contract will be deemed to have been concluded for a fixed term contract, the duration whereof will be equal to the fixed term of the initial contract with a maximum of one year.

An employer is obliged to follow the rules on the reintegration of sick employees, irrespective of the fact whether the employee is working on the basis of a fixed term or indefinite term employment contract.

For both types of employees (fixed term or indefinite term) a protection against dismissal applies during the first two years of sickness. The protection against dismissal does not apply in case of a complete shutdown of the business activities of the company.

Irrespective of the sickness, a fixed term contract will terminate by operation of law upon expiry of the agreed period of time. Especially if the remaining duration of the fixed term contract is relatively short, the best approach is usually to just await the expiry of the initially agreed period. In those circumstances it is usually not worthwhile even to consider interim termination of the employment contract.

If the remaining duration of the employment contract is still (very) long, the employer may have a bigger incentive to investigate the options for interim termination. In practice however, such options will rarely exist given the above-mentioned protection against dismissal. Apart from the protection against dismissal the obstacles referred to above in respect of interim termination will have to be overcome as well. When considering the strategy, the employer must also include the existence of any insurance against the risk of having to continue salary payments during sickness.

As you may conclude on the basis of the foregoing, issues relating to the termination of employment contracts can form quite a minefield. This especially applies if the employee involved is sick. We therefore strongly recommend that your member-companies consult a lawyer before initiating any actions aimed at termination of employment. ( PH)　

As we can depict from the e-mails we received trough Mrs. W. Li and Mr. B. Breukink the facts are as follows.

A Taiwanese parent company owns the shares in a Dutch BV. The Dutch BV functions as the European Logistics Center of the Taiwanese parent company. The business of the Taiwanese parent company constitutes out of the production of PC-parts. The Taiwanese parent company ships its PC-parts to the Netherlands and imports the PC-parts into the Netherlands. Via the Dutch BV the PC-parts are then onwards transferred to third party distributors, which are established in Eastern Europe.

The Dutch BV also repairs and swaps defect PC-parts, which it receives from its East European distributors, if the defect PC-parts are returned within the warranty period. However, the Dutch BV sometimes also repairs defect PC-parts for its East European distributors, if the defect PC-parts are returned when the warranty period has already expired. For this service performed by the Dutch BV it charges its East European distributors. If the Dutch BV can not repair the returned PC-parts by its East European distributors, it sometimes sends these defect PC-parts to the parent company in Taiwan or to the Chinese product factory for repair.

The Dutch BV has acquired a service from a Belgian company, which service constitutes out of building up an Internet system for the Dutch BV. The personnel of the Belgian company performed their services on the premises of the Dutch BV. The Belgian company sent an invoice to the Dutch BV for the services rendered, which included a Belgian VAT-charge.

We can depict from the e-mails we received through Mrs. W. Li and Mr. B. Breukink that you have the following questions:

Seeing the explicit mentioning of the date May 1, 2004 and Eastern Europe countries we assume that with the East European countries it is meant the countries, which will enter the European Union on May 1, 2004. It will not be possible for the Taiwanese parent company to directly import the PC-parts into the different East European countries entering the EU on May 1, 2004 by using its Dutch VAT-identification number. If it is desired to directly import the PC-parts in those countries a VAT-identification number for each separate country should be obtained by the Dutch BV or the Taiwanese parent company.

As these countries will all enter the European Union on May 1, 2004 they will also have to implement the VAT-rules of the European Union. Therefore it will be possible for the Dutch BV or the Taiwanese head company to apply for a VAT-identification number in those countries. However, it is still unclear if the EU VAT-rules are already fully implemented by those countries. The possibility for the Dutch BV to obtain a VAT-identification number should therefore be investigated for each of the relevant countries separately. This also accounts for the VAT-rate applicable upon importing the PC-parts into the relevant country.

We do not know to which documents exactly you refer. However, we are aware that upon exporting and importing goods a shipping agent might require a ‘pro forma’ invoice from the importing and exporting company. Such a ‘pro forma’ invoice will be necessary for the shipping agent to import the goods into Taiwan. Most likely the ‘pro forma’ invoice will amount to nil. If the pro forma invoice is not the document you are referring to, could you please provide us with some more details on the document you refer to? Please be aware that we did not check any customs legislation and documents relating to customs-requirements.

As long as the PC-parts are only repaired insofar that they will again function as intended, and are not repaired in a way that they qualify as a newly produced good, than the repair of the PC-parts by the Dutch BV will qualify as a service for Dutch VAT-purposes. In general a good is deemed to be a newly produced good, when the good is repaired and modified in a way that it has a new use or has new functions opposed to its former use or functions.

As a general rule according to the Dutch VAT-legislation in principle a service is taxable for VAT-purposes in the country, where the provider of the service is established. Under certain conditions a service is taxable where the user of the service is established and therefore the service provider does not have to charge Dutch VAT. However, none of the conditions mentioned in the Dutch VAT-legislation are applicable in this situation and therefore the service provided by the Dutch BV is taxable in the Netherlands.

In addition to the above the Dutch BV will therefore have to charge Dutch VAT to its distributors upon repairing the PC-parts. The applicable VAT-rate is 19%.

The service performed by the Belgian company qualifies as a service for Dutch VAT-purposes. As described in our answer on questions 4 and 5 a service is taxable for Dutch VAT-purposes in the country where the service provider is established. Since, none of the exemptions is applicable the service performed by the Belgian company is taxable in Belgium. Therefore Belgium VAT will be due by the Dutch BV to the Belgian company.

The Dutch BV may claim a refund for the Belgian VAT paid to the Belgian company with the Belgian tax authorities. The Dutch BV will therefore need to acquire a Belgian VAT identification number. If requested we could assist you in such a refund-procedure.

Please be aware that if the service performed by the Belgian company relates to the construction of the website of the Dutch BV, the service is deemed to take place in the Netherlands. As a consequence the service provided by the Belgian company would be taxable in the Netherlands. The Dutch BV would then have to pay the Dutch VAT due by means of self-assessment to the Dutch tax authorities.

Should you have any questions on the above, please do not hesitate to contact us. (Pieter Camps & Sander Flore)

A: The criteria is the gross wage that is subjected to wage tax in the Netherlands.
To our opinion the holiday allowance and 13th month are also included in the gross salary
(which also subject to wage tax in the Netherlands).

    the agreement, also employment contracts containing the salary level have to be submitted on an individual
    basis. Thereafter, the residence permit is being issued for a maximum of five years indicating that the person
    involved is fulfilling the conditions in the new resolution. We received information that before 1 January
    2005 it will not - from a practical point of view - be possible for the IND to make such agreements due to the
   fact that their workload is too heavy. If the Taiwanese employer is registered while using the MVV procedure
   for more than 10 expats, they will receive such an agreement of the IND automatically (before Jan. 1 2005).
   If not, the employer can file an application for the agreement but probably has to wait till the IND deals with
   their application (probablyDec./Jan). In case no agreement has been signed, the employer still has to apply for
   a work permit as it was in the past. It is not completely clear what documents are needed (like pay slips,
employment contract etc) if documents as employment contract or salary slip are needed.