SER advice a prelude to (further) new employment legislation

The social partners have reached agreement in the form of joint advice to the government yet to be formed. As soon as the formation puzzle has been solved, the coalition will not be able to ignore the SER advice, since literally all the employers’ organisations and trade unions have endorsed it. The advice is very likely to be enacted. The main points are addressed below.

1. No relaxation of dismissal law

Although the SER largely follows the report of the Borstlap Committee, which advised on future rules of employment early last year, there is a big difference: the Borstlap Committee also wanted to make employership more attractive. That would be at the expense of employees’ rights in some respects. The SER advice leaves employee protection untouched and does not, for instance, relax dismissal law. In fact, the 3x3x6 rule is reduced to a 3×3 rule. Three fixed-term contracts may still be entered into over a period of three years, but the current six-month interruption period will lapse – except in the case of students and pupils (six months) and seasonal workers (three months) – so that structural fixed-term employment at one and the same employer will no longer be possible. It will no longer be possible to contract out of these rules in a collective agreement.

2. What rules will be relaxed?
  • Employers are not required to make the transitional payment if they help an employee find a new job while still employed. The social partners promise to set up a “comprehensive service” for the job-to-job transition.
  • If the economy is doing badly, a company may force all its employees to work fewer hours, subject to a maximum reduction of 20%. But the employees then continue to receive their full salary. A quarter of the hours not worked are paid by the employer; the rest is reimbursed, for instance out of a fund.
  • The employer’s obligation to continue to pay the salary will remain in force in the event of sickness, but the obligation to rehabilitate employees will be relaxed. Employers may transfer this responsibility and the accompanying obligations by taking out insurance.
3. Putting the brakes on flexible work
  • The major overlap between the SER and the Borstlap Committee is the wish to make flexible work less attractive, so that employers will use it only when they really need to (during peak periods and sickness), but not to “compete in terms of employment conditions”, according to the SER.
  • The use of the agency clause (Phase A) will be limited by law to 52 weeks (instead of 78 weeks, which cannot be contracted out of in a collective agreement). Phase B will also be limited (to a maximum of six contracts in two years) and the employment conditions of temporary agency workers must be equivalent to those of employees employed by the recipient.
  • On-call contracts, including zero-hours contracts, must disappear and be replaced by “basic contracts”, which provide for a minimum number of working hours per quarter. Again, an exception applies to students and pupils.
4. Crackdown on false self-employment

A falsely self-employed person is someone who, as a self-employed person, performs work that is usually done by an employee, in low-rate sectors such as meal and parcel delivery companies. The SER wishes to make the legal assessment of false self-employment easier for anyone who is paid a relatively low rate, below €30 to €35. Such persons must be considered employees. Self-employed persons will furthermore be obligated to take out insurance against long-term incapacity for work. The tax allowance for self-employed persons will furthermore be phased out.

Do you have any questions about this subject? Please contact Michiel van Haelst (+31-6-55394487).

This article was published in the Newsletter Vestius of July 2021