No work, with full pay?
It is possible to exclude the obligation to continue to pay wages in any individual employment contract for the first 6 months of the employment contract, if the employee no longer works. If this term is to be extended, this cannot be done unrestrictedly, but only in the collective labour agreement for those jobs with an incidental nature and no fixed scope. This means, for example, on-call workers who incidentally work during peak times, rather than on-call workers who work structurally.
Temporary employment contract
The exclusion of the obligation to continue to pay wages can be deviated from in the collective labour agreement if no work is done (No work, with full pay) for a term of no more than 78 weeks. Also, in the collective labour agreement, arrangements can be made to the detriment of the employee for successive employers. In brief, this concerns the situation where the new employer can be considered the successor of the former employer and the (temporary) employment contract concluded with the new employer is taken into account for the chain of fixed-term employment contracts.
Trial period
In the collective labour agreement, the following can be deviated from:
- 1 month trial period if the employment contract is concluded for less than 2 years;
- 1 month trial period of the termination of an employment contract for a definite period is not established at a calendar date.
Please note: at all times (both in the employment contract and in the collective labour agreement) no trial periods can be agreed for employment contracts shorter than 6 months.
The chain of fixed-term employment contracts
In the collective labour agreement, to the detriment of the employee, there can be a deviation from the term of 24 months up to no more than 48 months and the number of employment contracts from 3 to no more than 6, in the following circumstances:
- Temporary employment contracts; or
- If this is required by the intrinsic nature of the business.
According to the government, the term ‘intrinsic’ does not apply to normal fluctuations in the conduct of business due to economic circumstances, but rather to the necessity resulting from the nature of the conduct of business in the sector. This applies, for example, to media and culture and academia.
Also, in the collective labour agreement, arrangements can be made to the detriment of the employee for successive employers. In brief, this concerns a deviation to the detriment of the employee for the situation where the new employer can in principle be considered the successor of the former employer and the employment contract concluded with the new employer should be taken into account for the chain of fixed-term employment contracts. It can also be determined in the collective labour agreement that the provisions on succession of fixed-term employment contracts do not apply to certain jobs, because it is long-term use for such positions and because, due to the intrinsic nature of the conduct of business and those positions, it is required that such work can only be conducted based on employment contract for a definite period.
Also, concerning the maximum term of temporary employment contract (24 months), the provisions on succession of fixed-term employment contracts can be deviated from in collective labour agreements to the detriment of the managers of legal entities.
If an existing collective labour agreement offers the opportunity, even prior to 1 July 2015, to deviate from the provisions on succession of fixed-term employment contracts, this possibility for deviation shall remain in effect for the remaining term of that collective labour agreement, but to no later than 12 months after the effective date of the legislative proposal.
Reflection principle
In cases of dismissal for business economic reasons, the reflection principle can be deviated from if other agreements have been reached on this in the collective labour agreement or if a committee has been appointed in the collective labour agreement that is charged with dealing with the dismissal applications by the employer.
Prohibition of termination
In no case whatsoever can there be a deviation from the prohibition to terminate employment in case of illness. The prohibition to terminate employment in case of military service is also maintained.
Redundancy Committee
In the collective labour agreement, an independent and impartial committee can be appointed which is (instead of the UWV) charged with dealing with the employer’s dismissal applications. Conditions have been imposed on the trade unions that can appoint a redundancy committee under the collective labour agreement. The trade union has to have members that work in the company or industry concerned. Also, based on its articles of association, the trade union’s purpose should be to represent the interest of its members and these members have to work in the company or industry concerned as such.
The collective labour agreement has to include rules concerning:
- The right to hear and be heard;
- Confidentiality;
- Reasonable response times; and
- Reasonable terms for decisions.
Transition fee
The (legal) transition fee does not apply if the collective labour agreement includes an equivalent facility aimed at preventing unemployment or reducing the term of unemployment (for example: work-to-work process).
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