New legislation as of 1 August 2022: action points for employers

The Transparent and Predictable Employment Conditions Bill has been passed, without much debate, by the House of Representatives. The legislative amendments will enter into force on 1 August 2022 (following approval by the Senate). Employers are obliged by this law to implement a number of changes. In this article you will read about the five most important action points for employers.

Amend employment contracts (extension of information obligation)

Employees must now be given more extensive information about certain subjects when they take up employment. This includes, for example, the naming of normal working hours, entitlement to paid leave (such as parental leave and care leave), rules for overtime and reference hours or days for flexible workers. Employees must also be informed about the procedure and requirements in the event of termination and dismissal.

Most employers will therefore need to expand their provision of information to new employees. This can be adapted either in the employment contract or in a personnel handbook, unless already regulated in the collective agreement.

Employees who are already in employment at the time the new law takes effect can still request this information. The employer must provide the information within one month of the employee’s request.

Rules for employees with ‘unpredictable work patterns

Employees who work on ‘unpredictable times and days’ must soon be informed by the employer on which days and hours they can be scheduled. If an employee is subsequently scheduled outside of these so-called reference hours or days, he/she may refuse to work. Furthermore, the four-day period and the regulation on withdrawing/changing the shift, as we currently know only for on-call workers, will start to apply to all employees with an unpredictable work pattern. Examples of employees with an unpredictable work pattern may include on-call workers, employees with a min-max contract but also employees with a fixed scope of hours who are flexibly scheduled. The issue is whether the working days and hours are predominantly determined by the employer.

Following the introduction of the Labour Market in Balance Act (WAB) in 2020, employers will once again have to deal with stricter rules and more obligations in the case of flexible workers. Employers would be well advised to adjust their business operations to this and to record all of this properly.

Training policy and costs

Employers may need to adjust their training policy to be in line with the new legislation. As of August 1, 2022, if the employer is required to provide training to the employee (under certain circumstances), the employer must:

• must offer the training free of charge (i.e. reimburse the training itself, travel expenses and/or any textbooks);
• the training must as much as possible take place during working hours; and
• the training must be considered working time;

In addition, for these training programs, it is no longer possible to agree with the employee on a study-costs clause with a repayment arrangement. Even existing study-costs clauses will no longer be valid after August 1, 2022.

Employers must first determine whether the training they offer is covered by the new law. This is not an easy task. What is clear is that it concerns only training that the employer is obliged to offer on the basis of the law or the collective bargaining agreement and that is necessary for the performance of the job. We read in the Explanatory Memorandum that it mainly concerns mandatory “training in the field of safety and working conditions (e.g. keeping up to date with professional competence).” However, it does not include vocational training or training to maintain a professional qualification. The new rules will not apply to professional training for the so-called regulated professions, such as doctor, pharmacist, crane operator or asbestos removal worker. The full list of regulated professions can be found here.

Our estimation is that the study-cost clause will remain valid for the vast majority of training courses. However, some employers will need to critically determine whether their training program is covered by the new legislation. The distinction between mandatory training and professional qualifications is not always clear.

We will keep you informed as more clarity emerges on this issue.

Performing ancillary activities

Employers should consider whether they need to amend their policy on ancillary activities.  As of August 1, 2022, a prohibition on ancillary activities will only be valid if it can be justified due to an “objective reason” or due to a statutory provision. This also applies to ancillary work clauses in existing employment contracts. The objective reason does not need to be included in the employment contract. If the employee indicates that he or she also wants to work elsewhere and the employer does not agree, the employer must provide an objective reason why this is not permissible.

An objective reason could include, for example, health and safety, protecting the confidentiality of business information, the integrity of public services, avoiding conflicts of interest or complying with working time legislation.

The starting point will be that employees are allowed to have multiple jobs unless there is one of the (above) objective reasons. The employer will have to make that reason known to the employee and justify why it is invoked.

Note: request for more predictable and secure terms of employment

Employees who have been employed with the employer for at least 26 weeks are given the opportunity to submit a request to their employer for ‘more predictable and secure employment conditions’. The Minister of Social Affairs and Employment mentions as examples a request for an employment contract for an indefinite period or with a fixed scope of work. The criteria that the request must meet are not stated in the law, nor is it stipulated when the employer must grant the request or on what grounds he may reject it. Furthermore, it is unknown how this request relates to the annual mandatory offer of a fixed scope of hours for on-call workers. It remains to be seen, therefore, whether this new right will have any meaning in practice or is merely a paper tiger.

In any event, the employer must give a written reasoned decision on this request within one month. Small employers (fewer than ten employees) will have three months to do so. If the employer does not respond in time, the work will be adjusted in accordance with the employee’s request. An employee may only submit such a request once a year.

If you have any questions about the new Transparent and Predictable Employment Conditions Act, or would like to have your employment contracts reviewed, we will of course be happy to help.