As of 1 August 2022, the Act Implementing the EU Directive on Transparent and Predictable Employment Conditions (in Dutch: Wet Implementatie EU-richtlijn Transparante en Voorspelbare Arbeidsvoorwaarden) will enter into force in The Netherlands. The name says it all: the directive aims to make the content of work more transparent and predictable in advance. According to the Explanatory Memorandum, the EU Directive does not provide for transitional law. The Act will therefore have immediate effect. This means that clauses contrary to this Act will be null and void immediately, also in employment contracts entered into before 1 August 2022.
This article informs you what actions you must take as an employer before 1 August 2022.
I Extension of the employer’s information obligation
As of 1 August 2022, the existing information obligation of the employer will be expanded. An overview of the information that is obliged to provide to the employee can be found on the website of the Dutch government (www.rijksoverheid.nl). As an employer, you are obliged to provide your employee with written or electronic information about the important elements of his/her employment contract. This includes i.e. the salary, the position and the time of commencement of employment. The information must be provided to the employee no later than one week after commencement of work. If you do not comply with this information obligation, the employee can claim damages.
- What do you need to arrange before 1 Augustus?
- Check whether the mandatory information is included in the applicable CAO.
- Check whether the information is included in the standard employment agreements.
- Is certain information not yet included in the employment contract or in the CAO? Amend the employment contracts.
- Also check the personnel handbook and adjust if necessary.
- Make sure that employees who started working before 1 August 2022 can request the more (extensive) information. This information should be provided to the employee within one month of the request.
II Ancillary work clause not valid
As of 1 August 2022, an ancillary work clause is not valid unless you can rely on an objective justification. This could be the protection of business secrets or the avoidance of a conflict of interest. Whether there is an objective justification depends on the situation. This ground does not have to be stated in advance in the clause, but can be invoked afterwards.
- What to arrange?
- Check the standard ancillary employment clause before 1 August 2022 and adjust where necessary. For example, require employees to request permission (in writing) for ancillary work in advance.
- After 1 August 2022, always respond in writing and with reasons to a request for permission to perform ancillary work.
- Do not reject a request unless there is an objective justification.
III Compulsory education costs for employer
As of 1 August, the costs of certain mandatory training courses may no longer be recovered from the employee. These are courses which the employer is obliged to offer to an employee on the basis of national legislation, EU legislation or a collective labour agreement. The employee must be able to follow this training during working hours. These study costs may no longer be deducted from the severance payment. It is also not permitted to agree a study-costs clause whereby the costs are still borne by the employee. If you do pass on study costs to the employee, these costs may be reclaimed by the employee.
- Check before 1 August 2022:
- Which individual or collective agreements contain agreements on training costs and adjust these agreements where necessary.
- Check the standard study cost clauses and adjust them where necessary.
- Check the standard clauses on the deduction of training costs from the severance payment and adapt them where necessary.
IV Request for more predictable form of employment
As of 1 August 2022, the Flexible Work Act (in Dutch: Wet Flexibel Werken) will be amended so that employees who have been employed for at least 26 weeks can request a form of employment with more secure and predictable employment conditions. This could be a request for an employment agreement for an indefinite period or an employment agreement with a fixed scope. If you do not respond to the request (in time), the form of employment will be changed in accordance with the employee’s request.
What to arrange?
- Draw up a regulation stating how employees can request more predictable and secure working conditions after 1 August 2022.
- Respond within one month of submitting the request. If you have fewer than 10 employees, there is a three-month deadline for responding to the request.
- Always respond in writing and with reasons.
It is important that you check your standard employment contracts for the changes mentioned above before 1 August 2022. In addition, all current study costs and ancillary work clauses that are in conflict with the law will be null and void as of 1 August 2022. This also applies to clauses entered into before 1 August 2022. We are happy to advise you. Please feel free to contact us.
Barbara Veldmaat Serena Bank
Employment Attorney Certa Advocaten Paralegal