Transparent and predictable working conditions as of 1 August 2022

By 1 August 2022 at the latest, the European Directive on Transparent and Predictable Working Conditions (the Directive) must have been enacted in the Netherlands. The objective of the Directive is to improve the position of employees by promoting more transparent and predictable working conditions. Below, we will discuss the three main components of the Directive, the implementing legislation and the implications for employers.

Outside activities

When the Directive is implemented, it will, in principle, no longer be permitted to prohibit outside activities during employment in a collective or individual employment contract. In principle, employees may have multiple jobs and employers.

The principal rule is therefore that an outside activities clause is null and void, unless the employer has an objective reason for imposing such a clause on the employee. Objective reasons may include:

  • the employee’s health and safety;
  • protecting the confidentiality of company information;
  • avoiding conflicts of interest; or
  • incompatibility with the employer’s obligations under the Arbeidstijdenwet (Working Hours Act).

The objective reason may be recorded in the actual employment contract, but may also be raised by the employer at a later date, when it invokes the clause. Existing outside activities clauses for which no objective reason has been recorded may therefore remain unchanged. If the employer wishes to invoke the outside activities clause, it must be able to provide an objective reason at that time.

Duty to inform

Article 7:655 of the Dutch Civil Code already obligates employers to inform employees in writing about all kinds of employment conditions and other matters. As of 1 August 2022, this duty to inform will be further extended. The extension of the duty to inform will mean, among other things, that employees must in future also be informed in writing about the entitlement to and duration of other paid leave (in addition to holiday leave), the procedural aspects of termination of the employment contract, the times at which the work must be performed, the salary components and the manner and frequency of the payment of the salary.

In the case of employees with an “unpredictable work pattern” (e.g. employees with a 0‑hour or min-max contract), what is known as “reference days” and “reference hours” must furthermore be agreed on at the start of the employment contract. Reference days and hours are the days and hours during which the employee may be obligated to come to work. In order to call on an employee to work on an agreed reference day, a minimum four-day call-out period applies. This is in keeping with the legislation that already applies to on-call workers. If the employer fails to do so or if the call falls outside the reference days or hours, the employee may refuse to perform the work.

In the case of new employment contracts from 1 August 2022 onwards, the employer is obligated, as a rule, to provide this information to the employee no later than one week after the start of the work.

Many of the existing employment contracts already contain all or most of the mandatory information. In so far as that is not the case, much of that information is often already set out in a collective labour agreement or in regulations such as an employee handbook, to which the employer may then refer. If the extended duty to inform has not yet been fulfilled, the missing information need not be made available in the case of existing employment contracts until an employee so requests. The employer must then provide information in written or electronic form to the employee in question within one month after such a request.

In order to comply with the law as of 1 August 2022, we advise employers to check their model employment contracts in combination with any collective labour agreement and employee regulations that may apply and, where necessary, to adjust them to the new legislation.

Study costs

The last important change relates to training costs. The change applies only to training that you, as an employer, are required to offer to employees by law or under the collective labour agreement. In that case (i) the training must be offered free of charge; (ii) the time involved must be regarded as working time; and (iii) the training must take place during working hours where possible. Training that an employer is required to offer by law or under a collective labour agreement is usually training in the field of safety or related to maintaining professional skills.

The change does not apply to training that is not mandatory! A study costs clause may therefore still be agreed on for such training.

Please note, however, that a study costs clause agreed on before 1 August 2022 that relates to mandatory training as referred to above will be null and void as of 1 August 2022, since no transitional law applies.

If you have agreed on a study costs clause or a study costs repayment arrangement in the employment contract or employee handbook and that clause relates to the costs of both mandatory and non-mandatory training, it cannot be precluded that the court will consider the entire clause null and void. We therefore advise employers to have existing study costs clauses reviewed before the law takes effect and to amend them in such a way that a separate study costs clause applies to non-mandatory training.

Do you have any questions about this article? Please contact Lise van den Heuvel (06-23492248) or Puck Keurentjes (06-12860380).

This article was published in the Newsletter Vestius of June 2022