NL: On 1 August, employment conditions must be transparent and predictable!

 

 

On August 1, 2022, the Transparent and Predictable Employment Conditions Act will come into effect. This implements the EU Directive on transparent and predictable employment conditions in the Netherlands. The new law introduces a number of new rights for employees. For employers, the new law results in a number of new obligations. The changes will apply immediately to both existing and new employment contracts. We have listed the most important changes for you.

The ancillary activities clause: an objective justification is required

A ban on ancillary activities is no longer allowed without further ado. An ancillary activities clause is null and void, unless this clause can be justified by an objective reason. Objective reasons may include health and safety, protecting the confidentiality of business information, the integrity of government services, or avoiding conflicts of interest. This list is not exhaustive. The objective reasons may therefore also lie in other interests of the employer. This includes the incompatibility of work with the employer's obligations under the Working Hours Act.

It is possible, but not necessary, to include these objective reason(s) in the employment contract itself. The justification must in any case be given when you, as an employer, invoke the ancillary activities clause in the employment contract.

Extension of the obligation to provide information

The employer's obligation to provide information will be expanded. Employers are currently already obliged to inform employees in writing about a number of matters relating to their employment relationship. For example: the position, date of commencement of employment and salary. From August 1, some obligations will be added. For example, the employer must inform the employee about “the procedural aspects of the termination of the employment contract”. Another extension concerns the obligation to provide information when the work is not performed at a fixed location or is not mainly performed at a fixed location.In that case, the employer shall state that the employee is free to determine his own workplace(s) or that the employee will perform his work at different places.

Mandatory training free of charge

In future, an employer must offer compulsory training to employees free of charge. In addition, employees should be given the opportunity to follow the training during working hours. This time should be regarded as working time. Mandatory training can, for example, relate to safety and the maintenance of professional competence.

It regularly happens that an employment contract contains a study/training costs clause, whereby the employee is obliged in certain cases to repay part of the training costs to the employer. Such a clause is null and void when it concerns training that the employer is obliged to offer by law.

Because there are still many questions about this subject in particular, the Government is expected to provide more clarity shortly.

'Unpredictable labour'

The position of workers with an unpredictable work pattern is strengthened. If the majority of the hours during which work must be performed is unpredictable, the employer will have to determine, directly or indirectly, when the work must be performed. The employer must indicate within which 'reference window' the unpredictable work must be performed and must take into account that the employee cannot be obliged to perform work outside these reference days and hours.

'Predictable labour'

In the event that the times at which work must be performed are wholly or largely predictable, the following information about the times must be provided: the duration of normal working time (by week or day), the arrangements for work outside the daily or weekly working time (overtime) including the compensation for this, and the arrangements for exchanging shifts or getting another schedule. A varying schedule or varying shifts do not detract from the largely predictable nature of the work pattern.

Amendment to the Flexible Working Act

A new article will be added to the Flexible Working Act. This article provides that an employee can request the employer after 26 weeks of employment for a form of work with more predictable and certain working conditions. Employers with more than 10 employees must respond in writing and with reasons within one month. Employers with fewer than 10 employees must respond to the request in writing and with reasons within three months. Please note: if there is no (timely) response, the work will be adjusted in accordance with the employee's request.

Amendment to the Employment Conditions of Posted Employees in the EU

The employer must inform the worker to whom the Posting of Workers Directive applies before his departure to another Member State of the following:

• the wages to which the worker is entitled under the applicable law of the host Member State;
• where applicable, all allowances in connection with the secondment and all arrangements for the reimbursement of travel, accommodation and meal costs; and
• the link to the website specially developed by the host Member State

Introduction of a new prohibition against prejudice and termination

Finally, the employee's employment contract may not be terminated and the employee may not be disadvantaged due to the fact that the employee has exercised his or her rights under the new legislation.

To do!

The law takes effect immediately. This means that clauses contrary to the law can be null and void as of 1 August. There is therefore a chance that the new legislation will have employment law consequences within your company. Our advice is to take a close look at existing (model) agreements and determine whether these need to be adjusted or supplemented. We are of course happy to help you with that! Please feel free to contact one of our employment law specialists:

Brigit van de Ven-Meier , vandeven@milestoneadvocaten.com , +31 6 23 93 65 79

Caroline van der Zwet , vanderzwet@milestoneadvocaten.com , +31 6 29 59 71 64

Frouke Vlaskamp , ​​vlaskamp@milestoneadvocaten.com, +31 6 50 60 23 15

Caroline Huizinga , huizinga@milestoneadvocaten.com , +31 6 30 62 82 82

 

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