On 21 June, the Dutch Senate approved the Act ‘Transparent and Predictable Working Conditions’. This bill serves to implement the EU Directive of the same name and contains, amongst others, new regulations regarding the information on working conditions the employer should provide to the employee, study costs, ancillary activities and unpredictable work patterns.
The new Act will enter into force on 1 August 2022. We will discuss the most important changes below.Extension of Employer’s Obligation to Provide Information
- This bill introduces a change to the employer’s obligation to provide information. At present, Section 7:655 of the Dutch Civil Code (“DCC”) already provides what information an employer must provide to an employee. In practice, this information is often included in the written employment agreement. In view of all the information the employer shall be required to provide to the employee, it is logical to include part of this information in an information sheet or employee handbook .
- The mandatory information to be provided will be extended by information on the place of work, working hours, entitlement to paid leave, arrangements for overtime work, procedural aspects of termination of the employment agreement, and information about the reference days on which flexible labour will be performed.
- For existing employment agreements, the employer will have to supplement this information in writing or electronically within 1 month after the employee’s request.
- If any change occurs to this information, this change will have to be notified to the employee in writing or electronically at the latest on the day on which it takes effect.
Training will be Free of Charge to Employees
- If an employer is obliged by law or by a collective labour agreement (“CAO”) to offer training, as of 1 August, such training must be:
- offered free of charge;
- the time involved in such training must be counted as working time; and
- where possible, such training must take place during working hours.
- This obligation concerns training that the employer is obliged to offer on the basis of the law or a CAO, for example on the basis of the general training obligation under Section 7:661a DCC.
- This principally concerns all training that is necessary for employees to fulfill (or keep fulfilling) their position. So, for example, training as part of a Performance Improvement Plan (PIP) also needs to be offered free of charge. This also counts for training that is meant to enable the employee to find another suitable position within the company.
- Vocational training or training required for workers to obtain, maintain or renew a professional qualification are excepted from this obligation, as long as the employer is not required by law or a CAO to offer it to the employee. This exception concerns ‘regulated professions’ as set out in Directive 05/36/EC on the recognition of professional qualifications.
- Because training that is required by law must always be offered free of charge, study costs clauses relating to such training will become null and void. There is no transitional regulation for such clauses. As a result, existing study costs clauses become invalid as soon as the new Act enters into effect.
Employee Can Take up Employment with Other Employer
- As a matter of principle, employees will be allowed to have several jobs. Therefore, after the entry into effect of the new Act ancillary activities clauses will be null and void, unless such clause can be justified on an objective ground.
- A justification on an objective ground for maintaining a ban on ancillary activities can either be included in the employment agreement or can be given at a later time. For example, at the time when the employer wishes to rely on an ancillary activities clause.
- Examples of an objective ground are the protection of business confidentiality or the avoidance of conflicts of interests.
- Again, there is no transitional regulation for such clauses. This means that the new law will also apply to existing ancillary activities clauses.
Rules for ‘Unpredictable Work Patterns’
- In the bill, new rules are also introduced for employment agreements in which the times on which the work must be performed are wholly or partially unpredictable. The employee may refuse a work assignment if it falls outside of the reference hours and days agreed in advance.
- Regarding work with an unpredictable work pattern, there is some connection to the rules in the Netherlands already existing for on-call workers. An employee may refuse a work assignment if the employer has not made this request at least four days before the start of the assignment.
- Request for work with more predictable and secure working conditions
- An amendment of the Dutch Flexible Working Act will make it possible for an employee who has been employed for at least 26 weeks to request a form of employment with more predictable and secure working conditions.
- In order for the employer to be able to comply with this request, such work must be available.
- The request must be answered with a reasoned written reply. There are no criteria as to when an employer should comply with or can reject such a request.
- If the employer fails to respond (timely) to the employee’s request, the form of employment will be adjusted in accordance with the employee’s request.
Take action before 1 August!
This bill will have drastic consequences for the contents of employment agreements, the employee handbook and for study costs and ancillary activities clauses. The Act will enter into force on 1 August 2022. Therefore it is important to review the relevant documents before this date and to amend them where necessary.
