On 19 April 2022 the second chamber in Dutch parliament has approved the so-called Act on Implementation of the EU Directive on Transparent and Predictable Employment Conditions (“the Act”) to implement the European Directive with the same title as per 1 August 2022. As it is highly likely that this Act will be adopted by the first chamber in Dutch parliament accordingly, we would like to share the impact hereof with you.
The European directive is an elaboration of some fundamental principles of EU law and is intended to broaden the scope of previous EU directives and their objectives on minimum requirements concerning information on the essential aspects of the employment relationship and the applicable working conditions. Please be alert that the implementation of the Act under Dutch law will have important consequences for Dutch employers. For example, various models used by employers (such as standard employment contracts and handbooks) may need to be adjusted.
We have listed the most important changes under Dutch law here for you.
Extended information duties
The requirement for the employer to inform the employee on its employment conditions, is extended;
- Within one week of starting work, employees must be informed about the most important employment conditions such as the place of work, the working hours and any information regarding the reference days and hours on which flexible work will be performed. the company name, the wages and their payment, the position, the date of starting work, the working hours, the working and rest times and the trial period.
- Within one month of commencing employment, employees should also be informed about holidays and paid leave to which the employee is entitled, the dismissal procedure and notice periods, whether the employee will be participating in a pension scheme, any collective bargaining agreement, the right to training, and the identity of the social security institutions receiving the social contributions.
A transitional provision does apply with regard to any information obligations. Many of the above information obligations may also be included in a Collective Labour agreement. INretail strives to do this insofar as it is actually necessary. If a CLA applies, the information to the employee may also be provided by including the CLA as an attachment in the employment contract.
Unpredictable working pattern
The above (extension of the) information obligation is also relevant in the context of the additional legal protection and legal certainty that the Act aims to offer to employees with (a form of) unpredictable work such as on-call workers.
The employer shall have to give these employee more clarity and certainty at the start of the employment contract regarding:
- reference days and reference hours on which the employee may be required to work;
- the minimum period of notice before work commences;
- the number of guaranteed paid hours;
- the pay for work done in addition to those guaranteed hours.
Such employees may request a form of employment with more predictable and secure working conditions provided the employee is in service for at least 26 weeks. Such a request can only be rejected in writing, with reasons, within one (or three months, in the case of small employers) of the request. Please note: if the employer does not respond (in time), the work will be adjusted in accordance with the employee’s request!
Furthermore, these employees may refuse work if it falls outside the agreed reference days and reference hours. Outside these reference days and reference hours, the employee cannot be obliged to work. For the time being, it seems that the inclusion of a broad reference period may offer a solution in practice.
Study costs clause
Employers regularly agree on a so-called study-costs clause so that the employee has to reimburse the costs of a training he followed if certain conditions have been met. In principle, this is no longer allowed for studies by employees related to the necessary performance of the job which follows from law or Collective Labour Agreement. These necessary trainings must be offered to the employees free of charge and the training time must be considered as working time of the employee. This applies to all costs of such a training: travel costs, books for exams, fees, etc. A study costs clause related to such a necessary training is null and void.
The training must – if possible –take place during working hours whether or not the contract is temporary, part-time or on-call.
In practice, this means that a distinction must be made between necessary training and non-necessary training.
Please note: study costs clauses that conflict with the rules set out above will become null and void as per the date that the law comes into force (1 August 2022). There is no transition period. This therefore means that from this date the employer is no longer allowed to get the costs of necessary trainings reimbursed by the employee nor settled.
On the other hand, an employer must fulfil its obligations towards its employees to allow them to follow the necessary trainings at the risk of compensation for the employee and the risk of not having sufficient grounds for a termination of the employee.
The Directive considerably restricts an ancillary activities clause, which is included in many employment contracts in practice. The main rule will be that a prohibition on ancillary activities is no longer validly agreed unless on the basis of so-called objective reason(s). This objective justification itself does not have to be stated in the ancillary clause, the employer must be able to substantiate this at the time when he invokes this clause. The following reasons may be seen as a justification: health/safety, confidentiality of company information, violation of the Working Hours Act, etc.