On 8 January 2015, the East Brabant District Court, Cantonal Division, ‘s-Hertogenbosch location, delivered its verdict in a lawsuit brought by 10 Hungarian freight drivers, at the instigation of FNV Bondgenoten, against Van den Bosch Transporten B.V. from Erp in Brabant and against its Hungarian sister company Silo Tank KFT”.
Declaration
The first claim of the Hungarian drivers, concerning a declaration of law that Van den Bosch Transporten B.V. is to be regarded as their employer, was rejected by the Subdistrict Court. The arguments that the drivers based this primary claim were insufficiently substantiated to assume the factual and formal employership of the Dutch transport company Van den Bosch Transporten B.V..
Wages
Secondly, the Hungarian drivers claimed from their Hungarian employer Silo Tank KFT a wage in accordance with the Collective Labour Agreement for Professional Goods Transport. The total wage claim amounts to more than one million euros.
The Subdistrict Court considered itself competent to hear the dispute between the two Hungarian parties, since the drivers stated in the summons that they usually carried out their work from the Netherlands.
Based on the European Posting of Workers Directive, which has been implemented in the Netherlands in the Waga (Wet employment conditions cross-border employment), the Subdistrict Court ruled that the basic employment conditions applicable in the country of posting apply if they are more favourable than the employment conditions of the (Hungarian) law that has been declared applicable to the employment contract.
Since the parties still have to state in the proceedings which parts of the wage claim should be considered basic employment conditions, it is expected that the wage will fall under this and not the claimed accommodation costs.
The parties must also further state their views on the consequences of the wage claim for the periods in which the CAO for Professional Goods Transport was not declared generally binding.
In view of the considerations in the interim judgment of 8 January 2015, the Hungarian company Silo Tank KFT will probably be ordered to pay an amount running into hundreds of thousands.
It is still questionable whether the Hungarian drivers will ever receive one euro. If a conservatory attachment is not successfully imposed on the clients of Silo Tank KFT, I suspect that the Hungarian drivers will miss out.
Due to the major interests of the bulk transport company group from Erp, I expect that an interim appeal will be lodged with the Court of Appeal in ‘s-Hertogenbosch.
For more information on the subject of this column, please contact Mr. Otto Lenselink (olenselink@transportrechtadvocaat.nl).
January 2015
* Court of East Brabant, subdistrict sector, location “‘s-Hertogenbosch d.d. 8 January 2015
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