ACM: companies are not allowed to make agreements not to take over each other’s staff

The fact that staff is difficult to get was once again demonstrated earlier this week by the Central Bureau of Statistics. At the end of the year, there were no fewer than 105 vacancies for every 100 unemployed. Nearly a third of entrepreneurs nowadays see a staff shortage as a serious obstacle in their business operations, according to a survey by the same CBS.

In such a situation, what could be more logical than to make agreements about your employees with the companies with which you have a good relationship? Even though we are both eagerly looking for new workers, we promise not to shoot each other’s pigeons.

Perhaps a logical approach, but one that is prohibited by law, let the Netherlands Authority for Consumers & Markets (ACM) Wednesday know very clearly. The regulator says it has indications that companies are guilty of this form of cartel formation.

Fines possible

The signals picked up, coming from the energy and technology sector, are now being further investigated. The regulator does not want to say whether the indications have been received in the form of tips or whether ACM is actually tracking agreements via, for example, social media. According to an ACM spokesperson, this would be the first time if companies were actually fined because of agreements about personnel. “In the United States you see that happening more often.” ACM has also previously investigated wage agreements that have been made outside the collective labor agreement, and these agreements may also be related to a lack of personnel. But that investigation has not resulted in fines.

It is well known that companies are not allowed to make agreements about prices between themselves and fines handed out often make the news. October last year, for example, buyers of deep-frying fat received millions of fines. Their price agreements duped snack bar owners.

“The Competition Act not only prohibits this type of price agreement, but also joint agreements about wages – if this happens outside the collective labor agreement – or about leaving each other’s staff alone,” says the ACM spokesperson. “The bottom line is that these kinds of agreements are harmful to competition, and in practice that means harmful to price, quality and innovation.”

no coincidence

It is no coincidence that ACM has picked up signals from the energy sector. The transition from a fossil to a sustainable energy system not only requires major investments, but also a large workforce. Recently, FME president Theo Henrar estimated that the shortage of technical personnel has doubled in the past five years to 96,000 people.

Not all agreements to prevent the transfer of employees are illegal, however. For example, a so-called non-competition clause can prevent an employee from quickly transferring to another company. “But that must have to do with confidential business knowledge,” says ACM. “And such a stipulation is also limited in time.”