Answer ... The COVID-19 pandemic has had an impact on the Dutch employment landscape, as many sectors have been affected by the measures imposed by the government (eg, lockdown and working from home).
As in most countries, in order to support the businesses affected most by these measures, the Dutch government introduced the temporary emergency bridging measure for job retention (NOW), enabling employers that faced loss of turnover due to COVID-19 (measures) to retain employees, as well as other measures.
NOW has been extended and adapted several times over the past year.
As regards the prevailing trends, in Dutch labour law, employees enjoy a high degree of protection, which often means extra costs for the employer. This has led employers to seek ways to exempt workers from the rules of labour law, especially through flexible contracts and by hiring people as small independent contractors.
To counteract this trend, the legislature has introduced a series of rules to limit it or make it more difficult. Recent judgments relating to Deliveroo and Uber are typical examples.
Employers are also looking for ways to reduce the permanent employment of employees and the legislature is similarly trying to make this unattractive, partly because the self-employed are underpaid and are not insured by social security.
The Balanced Labour Market Act, which was introduced on 1 January 2020, will have an additional impact as of 1 July 2021. On the basis of that act, an employer must offer a fixed scope of work to employees with an on-call contract who have been employed for at least 12 months. The offer of the fixed number of hours must be at least the average number of hours worked over the previous 12 months.
With effect from 1 July 2021, the employer’s offer is valid for one month. If the employee returns to the offer after one month and one day, this is too late and the offer will have lapsed. If the employee accepts the offer on time, the ‘new’ scope of work must commence on the first day of the 15th month at the latest.
On 1 June 2021, the Social and Economic Council (SER) presented an advisory report on the labour market, which was jointly drafted by employers’ and employees’ organisations. It is expected that this advisory report will play an important role in the upcoming cabinet formation. The most important points are as follows.
According to the SER, the motto for flexible workers is now: “Available for everything, entitled to nothing.” According to the SER, a permanent contract should once again become the norm and flexible work should be made less attractive. Employers should use flexible workers only where this is really necessary – for example, during seasonal peaks or to replace sick employees. The use of flexible workers to avail of more favourable conditions for the employer is out of the question.
The rules on temporary workers must also be changed. Currently, they are entitled to a permanent contract only after 5.5 years with the temporary company; the SER seeks to reduce this to three years. Temporary workers must also be given the same fringe benefits as permanent workers, including bonuses, a 13th-month salary and pension.
On-call contracts, including zero-hours contracts, will disappear and will be replaced by ‘basic contracts’. These basic contracts entitle the employee to a minimum number of working hours per quarter. Only for pupils and students will a variant of on-call contract remain.
Employers complain that the terms of permanent contracts are overly rigid. Therefore, in exchange for curbing flexible work, the SER wants to make employment more attractive to employers. For example, employers will be allowed to send employees home for up to 20% of their working time when the economy is not doing well. The employer will pay less, but the employee will keep his or her full salary. This scheme was inspired by the NOW wage subsidy. It is still unclear from which pot the remainder of the salary will be paid.
Furthermore, in the event of impending dismissal, the employer and employee must be able to opt for termination of the employment contract by mutual consent, including a ‘work-to-work’ route. The transition payment can then be waived.
The SER also wants to relax the so-called ‘counselling obligation’, which requires employers to continue to pay sick employees for two years and to provide them with guidance on returning to work. The SER wants a medical examination to take place after one year. If the examination shows that the sick employee cannot return to work, the insurer can take over the employer’s duty of assistance.
The SER further wants to get rid of false self-employment, where someone is classed as self-employed when he or she should actually be an employee. This problem occurs, for example, in the delivery sector and in home care. In recent years, however, it has proven difficult to assess whether there is false self-employment.
The SER wants to solve this problem by having the self-employed earn at least €35 per hour. Anyone earning less must be employed by the company, unless the company can demonstrate entrepreneurship. The burden of proof for this lies with the employer/client. Together with the adjustment of certain tax incentives, the SER hopes to improve the position of the self-employed.
All in all, this SER advice – although it certainly does not tackle all practical problems for employers, and may even create some new ones – should have a considerable impact. In any case, it is clear that labour law will remain a hot topic in the coming term of office.