Transparent and predictable employment conditions as of August 1, 2022

As of 1 August 2022, the European directive on transparent and predictable employment conditions will be transposed into Dutch law. What will change for employers? You can read about it in this article, written by the experts of Vestius Advocaten, partner of FHI Advice.

Transparent and predictable employment conditions as of August 1, 2022
The European Directive on transparent and predictable working conditions ('the Directive') must be transposed into Dutch law by 1 August 2022 at the latest. The Directive aims to improve the position of employees by promoting more transparent and predictable working conditions. Below we discuss the three most important parts of the Directive and the implementing legislation and their implications for employers.

Secondary activities
With the implementation of the directive, it will in principle no longer be permitted to prohibit the performance of secondary activities during employment in a (collective or individual) employment contract. The starting point is that employees will henceforth be permitted to have multiple jobs/employers.

The main rule is therefore that a secondary employment clause is null and void unless the employer has an objective justification for binding the employee to a secondary employment clause. Objective reasons may include:

• the health and safety of the employee;
• the protection of the confidentiality of company information;
• avoiding conflicts of interest; or
• the incompatibility with the employer's obligations under the Working Hours Act.

The objective reason may be included in the employment contract itself, but may also be invoked by the employer at a later date when he invokes the clause. Existing secondary employment clauses for which no objective justification is included can therefore remain unchanged. If the employer wishes to invoke the secondary employment clause, he will have to be able to invoke an objective justification at that time.  

Information obligation
Article 7:655 of the Dutch Civil Code already obliges employers to inform employees in writing about all kinds of employment conditions and other matters. This information obligation will be further expanded from 1 August 2022. The expansion of the information obligation will mean, among other things, that employees must now also be informed in writing about the entitlement to and the duration of other paid leave (in addition to holiday leave), the procedural aspects of the termination of the employment contract, the times at which the work must be performed and the components of the salary and the manner and frequency of payment thereof. 

Furthermore, for employees with an 'unpredictable work pattern' (think of employees with a 0-hour or min-max contract), so-called 'reference days' and 'reference hours' must be agreed upon at the start of the employment contract. Reference days and hours are the days and hours on which the employee can be required to come to work. If you want to call an employee to come to work on an agreed reference day, a minimum call-up period of four days applies. This is in line with the legislation that currently also applies to on-call workers. If the employer does not do this or the call falls outside the reference days or hours, the employee may refuse to work.

For new employment contracts from 1 August 2022, the employer is obliged to provide this information to the employee, as a rule, within one week after commencement of work.

For many of the existing employment contracts, (the majority of) the mandatory information to be provided is already included therein. If this is not the case, much of this information is often already stated in a collective labour agreement or a regulation such as an employee handbook. It is then sufficient if the employer refers to this. If the extensive information obligation has not yet been met, it is only necessary to supplement the missing data for existing employment contracts after an employee has requested this. The employer must then provide the information to the employee in question in writing or electronically within one month of the request in question.

In order to comply with the law from 1 August 2022, we advise employers to review their model employment contract in combination with any applicable collective labour agreement and personnel regulations and, where necessary, adjust them to the new legislation.

Tuition fees
The last important change concerns training costs. The change only concerns training that you as an employer are obliged to offer to (certain) employees based on the law or the collective labour agreement. In that case, the training in question: (i) must be offered free of charge, (ii) the time involved must be considered working time, and (iii) must take place during working hours as far as possible. Training that an employer is obliged to offer based on the law or collective labour agreement usually concerns training in the field of safety and maintaining professional competence. 

The amendment does not apply to non-compulsory education! A study costs clause can still be agreed upon for this.

Please note: a study costs clause concluded before 1 August 2022 and relating to a compulsory education as referred to above will be null and void from 1 August 2022. There is no transitional law.

If you have agreed on a study costs clause or a study costs reimbursement scheme in the employment contract or the personnel handbook, whereby this clause applies to both mandatory and non-mandatory study costs, it cannot be ruled out that the entire clause will be considered null and void by the court. We therefore advise employers to have existing study costs clauses checked before the law comes into effect and to adjust them in such a way that there is a separate study costs clause for non-mandatory training.

For questions or advice on this subject, please contact Lise van den Heuvel (06-23492248) or Puck Keurentjes (06-12860380).