The Act implementing the EU Directive on Transparent and Predictable Working Conditions (Wet implementatie EU-Richtlijn transparante en voorspelbare arbeidsvoorwaarden – Wtva) entered into force on 1 August 2022. This Act implements the European Directive on transparent and predictable working conditions. This entails a number of changes to existing employer obligations, the most important changes of which you will find below.
Extension of the obligation to provide information
Article 7:655 of the Dutch Civil Code (DCC) obliges the employer to provide certain information about the employment contract to the employee in writing. The deadline for providing the information is to be reduced in certain cases from one month after the commencement of work to one week after the commencement of work. The obligation is also to be extended in the sense that, from now on, information must also be provided on, among other things:
The information may be included in the employment contract and/or in a staff handbook. In certain cases a reference to the applicable legislation and/or regulations in the CAO will suffice. With regard to the termination of the employment contract, for example, a reference can be made to the rules in Title 7.10 of the DCC, possibly with a reference to the specific rules relating to the cancellation or dissolution of the employment contract.
With regard to existing employees the additional information should, in principle, only be provided if requested.
Justification of ancillary activities
Under the Act on Transparent and Predictable Working Conditions it remains possible to agree on a prohibition on performing ancillary activities. What is new, however, is that employers can only derive rights from such a prohibition if they have an objective justification for doing so, for example in connection with the health and safety of employees, protecting the confidentiality of company information and/or avoiding conflicts of interest. The reasons may also lie in other employer interests, for example the incompatibility of the work with the employer's obligations under the Working Hours Act (Arbeidstijdenwet).
Employers may provide the justification at the time they actually invoke the clause. Unlike in the case of a non-competition and non-solicitation clause in a fixed-term employment contract, there is therefore no need to include the justification in the employment contract. This means that there is currently no immediate reason to amend existing ancillary activities clauses. If the employer cannot provide an objective justification for the ancillary activities clause at the time it is invoked, the clause will be null and void and the employer will not be able to derive any rights from it. In that case the employer cannot prohibit the employee from carrying out ancillary activities.
Costs of mandatory training
As of today employers must offer ’mandatory training’ free of charge (Article 7:611a DCC). This means that, from now on, study costs clauses with repayment schemes are null and void as far as mandatory training is concerned. All costs incurred by the employee in connection with following mandatory training are to be borne by the employer (e.g. travel expenses, books and other study materials and examination fees). As far as is reasonably possible the employee must also be given the opportunity to complete the training during working hours. That working time is to be regarded as working time.
In the parliamentary documentation and legal literature the question of when exactly mandatory training exists within the meaning of the law and how broadly this concept should be interpreted has been the subject of discussion. Training that employers are obliged to offer can, among other things, relate to safety and keeping professional skills up to date. On the other hand, training that employees are obliged to undergo in order to obtain, maintain, or renew professional qualifications does not fall under the new regulation, unless the employer is obliged to offer it pursuant to European or national law, or a collective bargaining agreement. What is more, training courses that fall under the Professional Qualifications Directive (Directive 2005/36/EC) are not mandatory training in the sense of the law. This concerns the so-called regulated professions, such as nurses, security guards, doctors and lawyers. Therefore, the employer is not obliged to reimburse training that is on this list.
The request for a predictable working relationship
The Flexible Work Act regulates that employees who have been employed for at least 26 weeks have the right to request an adjustment of working hours, working time and workplace. To this is added the right to request more predictable and secure working conditions. This could include, for example, a request for a permanent contract, or a contract with a fixed scope of work. The employee must submit the request in writing and, depending on the number of employees, the employer must respond to the request in writing and with reasons within one month or three months. If an employer does not respond to the request in time, the request will be deemed to have been granted. As a result the employment contract may have to be supplemented or amended.
From today an additional information obligation applies to employers who post workers to another EU Member State, according to which the worker must be informed, before the posting starts, of:
If you have any questions or would like to find out more about a particular subject, please feel free to contact us.
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The year 2022 will see some developments in Dutch employment law. We have listed the main changes below.