Clifford Chance

The EU Directive on Transparent and Predictable Working Conditions must be transposed into national law by 1 August 2022. The Netherlands implementation bill has now been adopted. In this blog post we have summarized changes relevant to employers in the Netherlands.

The EU Directive on Transparent and Predictable Working Conditions is particularly focussed on the situation of workers in more precarious jobs, who have e.g., limited certainty on when they will need to perform their work. It intends to strengthen the position of these and other employees in various respects including:

Side activities - A prohibition to perform side activities outside of the employee's contractual working hours with the employer, is no longer permitted and even void. The only exception is if there is an objective justification for such restriction. The justification needs to be present when the side activities prohibition is invoked by the employer. The justification does not need to be included in the contractual clause, so there is no immediate need to change existing employment agreements.

Information on essential elements of employment - The written information provision requirement as regards the essential elements of the employment relationship, has been extended to reflect developments in the labour market, including the increase of more atypical forms of work.

Specified information needs be provided e.g., if the work pattern is entirely, or to a large extent, unpredictable. The legislation also requires information to be provided on all forms of paid leave offered by the employer, and a specification of the various elements of an employee's pay. It furthermore acknowledges the situation post COVID that the work may no longer predominantly be performed at one location, so where applicable, the employer will need to specify that the work will be performed at different locations (e.g., including home office), or that the employee is free to select the work location. Information on the termination procedure of the employment relationship can be provided by including a reference to the relevant chapter of the Dutch Civil Code.

Pursuant to the new legislation employers must share further details, including but not limited to information on the aforementioned topics, with employees within one month after the start of the employment, with certain information to be provided within one week after the start of the employment. No (separate) information requirement exists where the written employment agreement contains the relevant details, or where relevant information is included in the applicable collective bargaining agreement. Specific requirements apply for providing the information in electronic form.

Free mandatory training - If Union or national law or collective agreements require employers to provide training to workers to carry out the work for which they are employed, such training must be provided free of charge and should, where possible, be carried out during working hours. Information on the company's training policy, e.g., the time available to attend trainings is also to be provided to the employee in writing, as part of the information on essential elements of the employment relationship.

Enactment - When the legislation becomes effective, presumably per 1 August 2022, it will have direct effect, i.e., no transitional period applies. However, for existing employees, the transitional arrangements provide that any additional information on the essential elements of the employment relationship must be provided to the employee within one month of such employee’s relevant request.

Protection - Employees who invoke their rights under the new legislation are protected against adverse treatment or consequences.