The scope of the prohibition on obstruction under section 9a WAADI, TAP 2019/237

Introduction

It is time to pay renewed attention to the scope of the prohibition of restrictions. This was prompted in part by a recent ruling by the Rotterdam District Court, which ruled, in brief, that a worker employed on the basis of a "zzp construction" can be regarded as a worker as referred to in Section 1(1)(c) of the Netherlands Workforce Allocation by Intermediaries Act (WAADI). The court ruled that in this case management and supervision was exercised by the hirer and concluded that the WAADI applies. A penalty clause included in the general terms and conditions fell under the prohibition on obstruction under Section 9a WAADI and was therefore void. Partial nullity was not possible, according to the court. Also, the penalty clause could not be regarded as reasonable compensation as referred to in Section 9a(2) WAADI. The District Court of Rotterdam assumed all this quite easily, and the question is how this relates to the case law of the Supreme Court.

This contribution seeks an answer to this question and, in addition, examines more generally, on the basis of case law and literature, how far the prohibition of obstruction extends. To this end, first the scope of application of the WAADI is discussed. After that, the...