In June 2019, the European Parliament adopted a Directive on transparent and predictable working conditions. The Directive grants new rights to employees and this thus affects employees’ employment contracts, as well as any employment conditions regulations. This may lead to employers having to change their (model) employment contracts and employment conditions regulations in 2022.
In this article we discuss the changes contained in the bill and consider the changes employers must make to their (model) employment contracts.
Implementation of Directive 2019/1152
The directive must be implemented in Dutch law. The government published a bill on 12 November 2021. The intended entry into force of the law is 1 August 2022. Thus, we recommend to review the employment contract of your employees and applicable regulations before that time.
Legislative amendments from Directive on transparent and predictable employment conditions (2019/1152)
Training costs clause
Employers already had a training obligation, but it is expanded by the Directive. Employers can no longer agree on a study costs clause for training that is necessary for the performance of the job. The employer must offer this training free of charge and the time an employee spends on the training is working time.
The question is therefore, what constitutes training that is necessary for the job? In any case, this concerns a training which the employer is obliged to offer based on the law or collective bargaining agreement.
Side-activities clause
An ancillary activities clause in the employment contract is possible from August 2022 only if the employer can justify it on the basis of an objective reason. If there is no such justification, the clause is null and void. Note: The justification does not have to be given at the conclusion of the employment contract or be included in the employment contract. The justification may already be included in the employment contract, but may also be given at a later date. So does an employee request permission to perform ancillary work? Then the employer can still provide the justification at that time.
The rationale behind this change is that an employee is free outside of working hours to work for another employer or to work for himself. Thus, an employee may have multiple jobs unless the employer can justify a prohibition. A justification could be, for example, the threat of a violation of the Working Hours Act, the protection of confidential business information or the health of the employee.
Employer information obligation
The information obligation of employers is expanded. Employers must, in addition to the information in Section 7:655(1) of the Civil Code, also provide information about:
- Working hours;
- Work place(s);
- Wage components (bonus and allowances);
- Procedural aspects in the event of termination of the employment contract;
- Right to training;
- Leave arrangements(s).
The employer can include this information in the employment contract, terms of employment regulations and/or personnel handbook.
On-call agreement
Employees are only obliged to work unpredictable working hours if the employer has made these working hours known at the start of employment. The employer is therefore given a more extensive information obligation in this area. An on-call worker must therefore know at what times he is obliged to work. This can be included in the employment contract.
Request for predictable work
Furthermore, after 26 weeks a call employee can submit a request for predictable work. Employers do not have to agree to this and the work must be available. Employers must respond to the request within 1 month (or within 3 months for small employers) with a written motivation. If the response is lacking, the employee’s request must be acted upon.
Prohibitions on giving notice
There is a new prohibition on giving notice. An employee who invokes the above new rights cannot be dismissed for that reason.
Posted workers in the EU
If an employer wants to post an employee from the Netherlands within the European Union, certain information must be provided. The employer must inform the employee about the wages, allowances and reimbursement of expenses to which he is entitled. This can be included in the employment contract or terms of employment.
Need help updating your employment contracts?
It is always wise to have your model employment contract checked regularly by an employment lawyer. Labour law is constantly changing and this year too there are changes, namely the implementation of the EU Directive on transparent and predictable terms of employment. Lisa Kloot of LVH Advocaten in Rotterdam will be happy to help you evaluate and adjust your employment contracts. She can also tell you more about the upcoming changes in employment law.
