Legislative change per August 22

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Legislative change per August 22

Good afternoon,

We herewith inform you about the legislative change that is effective per 1st August 2022, concrete steps to be taken by the employer and sample provisions that should be included in new employment contracts.

August 1, 2022: Transparent and Predictable Working Conditions Act
As of 1 August 2022, the Transparent and Predictable Working Conditions Act applies. Below we have set out the most important changes for employers.

Extension of information obligation
The employer’s obligation to provide information has been extended (Article 7:655 of the Dutch Civil Code). Employers must inform the employee in writing or (with the employee’s consent) electronically about the duration and conditions of the probationary period, the entitlement to vacation or other paid leave, the training policy and the procedures in the event of dismissal (including: the notice periods). In addition, if the work pattern is unpredictable, employers must inform the employee about the days and hours on which the employee may be required to work, the term for convocation and the number of guaranteed paid hours.

The sanction for non-compliance with the information obligation does not change: the employee can hold the employer liable for any damage suffered as a result of the non-compliance (Article 7:655 paragraph 4 of the Dutch Civil Code). However, the granting of compensation in such case is rare.

Required steps to be taken
Depending on the type of information, the employer must provide a new employee with the information referred to in Article 7:655 paragraph 1 of the Dutch Civil Code, ultimately one week or one month after the work has commenced. The information can be provided in the employment contract, in an applicable collective labour agreement or an employee handbook. The employer must provide the information referred to in Article 7:655 paragraph 1 of the Dutch Civil Code to employees who were employed before 1 August 2022 and made a request to that effect, within one month (Article 7:655 paragraph 10 of the Dutch Civil Code).

Ancillary work clauses null and void, unless ..
An ancillary activities clause (which prohibits the employee to perform ancillary activities) is null and void, unless there is an objective justification (Article 7:653a of the Dutch Civil Code). The law does not state which objective grounds for justification exist. The following possible objective justifications follow from legislative history: health and safety, confidentiality and protection of business information, integrity of government services or avoidance of conflicts of interest.

Steps to be taken
The objective justification does not have to be mentioned in the employment contract. The employer can also invoke an objective ground of justification afterwards. Existing ancillary activities clauses continue to apply, but the employer must be able to objectively justify an appeal to them. If the employer has no objective justification, then the ancillary activities clause is null and void and the employee may perform ancillary activities.

Study costs at the expense of the employer in case of “need to have”, so not in case of “nice to have”
Mandatory training for the employee’s own position must be free of charge for the employee and must be followed, as far as possible, during working hours (Article 7:611a paragraphs 2 to 5 of the Dutch Civil Code). ‘Compulsory training’ is training that the employer is obliged to offer on the basis of European law, national law, a collective labour agreement or a regulation by, or on behalf of, an authorized administrative body. Courses that an employee is obliged to follow on the basis of the professional qualification guideline to maintain the professional qualification are excluded (see: https://wetten.overheid.nl/BWBR0023396/2021-01-01 no English version available). There is also an exception for domestic staff (Article 7:611a paragraph 3 of the Dutch Civil Code).

Relevant is the obligation imposed on an employer to offer the employee training. This may concern training that is necessary for the proper performance of the employee’s own position, on the basis of the general training obligation (Article 7:611a paragraph 1 of the Dutch Civil Code). It may also derive from specific, other legislation (for example, the Financial Supervision Act).

The costs for this compulsory training may not be recovered from the employee. The costs may also not be deducted from the transition payment. A study costs clause that conflicts with this is null and void.

The employee must be able to follow these mandatory training courses during working hours. This working time counts as obligations under the Working Hours Act. Whether the employee is entitled to wages for this working time depends on the agreements made.

Steps to be taken
Employers must take the new obligations into account (Article 7:611a of the Dutch Civil Code):

  1. compulsory courses must
  2. be free of charge and
  3. in principle be followed during working hours.

Study cost clauses agreed before 1 August 2022 for study programs that fall under the scope of Article 7:611a of the Dutch Civil Code are null and void.

Step-by-step plan for study costs clause
Below is a step-by-step plan to determine whether the employer should offer the employee a free of charge training course.

  1. Is the training falling under the scope of article 7:611a paragraph 1 of the Dutch Civil Code or is the employer obliged to offer the employee the training on the basis of national law, European law, a collective labour agreement or a regulation established by an administrative body?
    Article 7:611a paragraph 1 of the Dutch Civil Code: “The employer enables the employee to follow training that is necessary for the performance of his position and, insofar as this can reasonably be expected of him, for the continuation of the employment contract if the position of the employee lapses or the employee is no longer able to fulfil it.”
    No: Study costs clause is allowed.
    Yes: Proceed to step 2.
  2. Is the employee’s profession mentioned in the annex to the Regulations for the determination list of regulated professions (see: https://wetten.overheid.nl/BWBR0023396/2021-01-01 no English version available)?
    Yes: Study costs clause is allowed.
    No: Proceed to step 3.
  3. Does it concern domestic staff in accordance with article 7:611a paragraph 3 of the Dutch Civil Code?
    Article 7:611a paragraph 3 of the Dutch Civil Code“Paragraph 2 does not apply to an employee who generally provides services on less than four days a week exclusively or almost exclusively for the benefit of the household of a natural person to whom he is employed. The provision of services for the benefit of a household also includes the provision of care to the members of that household.”
    Yes: Study costs clause allowed.
    No: Study costs clause is not allowed.

Disadvantages prohibited
Employees may not be disadvantaged because they enforce the rights granted under the law, submit a complaint or are being assisted in that context (Article 7:670, paragraph 9 of the Dutch Civil Code). In addition, the employer cannot terminate the employment contract due to the circumstance that the employee exercises the rights granted by this law (Article 7:670, paragraph 9 of the Dutch Civil Code).

Model Provisions
Ancillary work clause
The Employee will inform the Employer in advance in writing if the Employee intends to perform paid or unpaid work for or in the service of third parties, in addition to his work for the Employer.

The employee will hereby state the party for whom he wishes to perform these ancillary activities and of the scope and nature thereof in advance. The Employee will not perform the ancillary activities without the prior consent of the Employer. In principle, the Employer will grant this permission, unless the Employer has an objective justification for refusing it, such as the health and safety of the employee, the protection of confidentiality of company information, the prevention of conflicts of interest, the protection of the good name and reputation of the Employer, or other objective reasons.”

Information obligation
This employment contract contains various provisions containing information that the Employer must provide to the Employee in accordance with Article 7:655 of the Dutch Civil Code. In addition, the Employer informs the Employee about the following.

In addition to vacation days, the Employee may also be entitled to other forms of paid leave, for example: parental leave, maternity leave, adoption leave, emergency leave, (additional) birth leave, short-term care leave and long-term care leave, all in accordance with the Work and Care Act.

If the Employer wishes to terminate the employment contract (prematurely), the various legal options apply in accordance with Title 7.10 of the Dutch Civil Code.”

If you have any questions regarding the above, we will be happy to assist you. Contact us via mail@sorensenadvocaten.nl or call +31 10 – 249 24 44.

Yvonne Sørensen