Catrina Smith (Moderator). Welcome to the next instalment of our series of videos looking at SMART working arrangements. Our objective in these videos is to provide you with a basic understanding of the legal framework relating to SMART working in Italy, France, Germany and the Netherlands, where we have strong employment law practices.
And now I have the pleasure of welcoming Maartje Govaert, the head of our employment law team in the Netherlands.
Q. Maartje, please give us a snapshot of current options for employers and employees who want to enter into flexible, or SMART, working arrangements in the Netherlands.
M: In the Netherlands we have quite a history of flexible working so already, for a long time we have allowed people to work part time. We have so many part time workers, usually women, and also something we call “duo jobs” – where part time is worked for 4, 3 or even less days and also a mixture of two people sharing one job.
We also have different, other kinds of types of contracts so besides the classic employment contracts of full time we have zero hours contracts, contractors, self-employed and numerous other ways to allow employees to work in a flexible environment.
Q: So, Maartje, it seems that on the one hand the Dutch legislator seems to want to make flexible employment less flexible, but, on the other hand, it also wants to increase the possibilities for employees to arrange their work in a more flexible way. Is that correct?
M: In the Netherlands we have a long history of part time and also flexible working, but while we see that the workforce and the next generation want to work in a more flexible way, the Government has just implemented legislation (in July 2015) that actually as a target wants to make flexible working a bit less flexible.
To give you an example of that, fixed term contracts. Before the Act you could offer three fixed term contracts over a period of 36 months. Now the period is reduced to 24 months. If there are intervals of less than six months between contracts, then they are deemed to form part of a consecutive chain of contracts.
The aim was that employers should give employees a permanent contract at an earlier stage, but this goal has not been met. In 2015, only 12% of the employees with a fixed term contract went on to become a permanent employee as what you see in practice is that contracts are now terminated after the 24 months.
The Another example is in respect of zero-hour contracts which are used quite often in some sectors. Prior to the new law, under a zero-hours contract, an employee had no fixed working hours. The new legislation provides that each time the employee under a zero-hours contract comes to work, he must be paid for at least three hours, even if less time is actually worked.
Also, since 2015, zero-hours contracts can only be for a maximum of six months. So, as in Italy, these contracts are intended only to offer temporary solutions to the employer.
What you see in the Netherlands and which is really growing are payroll constructions. All the risk and liabilities are taken over by the payroll company and the workers are seconded to other companies where they then work. The Government has implemented reforms to improve the protection of payroll workers, to be more equal with other employees.
Q: So, Maartje, can part time employees work for different hours in the Netherlands?
M: Employees can ask to work more or less hours. We have usually seen in case law it is generally a request for a reduction in hours.
The Act provides that employees who have been employed for at least 26 weeks have the right to submit a request for a change of hours or place of work. The request has to be submitted in writing to the employer at least two months before the change is due to occur. The employee doesn’t have to provide any particular reason for wanting the change.
Following the submission of the request, the employer can deny the request but it has to be for substantial business reasons and case law shows that such requests are hardly ever denied. The final decision should be communicated to the employee at the latest one month before the change takes place. If the employer does not respond within this time the contract is automatically changed to the time requested by the employee.
Q: What other requests for flexibility can you have under Dutch employment law?
M: One other form of request as well as diminishing or increasing hours is a request to change the place of work, generally to work at home. We see this more and more often in the Netherlands. In this case, the employer who wants to refuse the request would have to act in accordance with good employment practices and would also have to substantiate his refusal with weighty business reasons for doing so. If the employer agrees to the request you must make sure that the workplace in the employee’s home is fit for working.
Conclusion: Thank you Maartje for that insight into ways in which you can work flexibly in the Netherlands.