No work, with full pay?
Article 7:628 BW states that the employer is obliged to pay wages that are fixed in money terms if the employee has not entirely or partially performed the contracted work, except to the extent that the employee has not performed the contracted work due to a cause which, reasonably, should be for account of the employee.
The risk distribution remained the same with the new legislation. In case of strike, suspension, unlawful absence, being late, imprisonment or pre-trial detention, the employee is (in principle still) not entitled to wages. However, with the introduction of the new article, the burden of proof lies with the employer.
The employer is allowed to exclude this risk of continued wage payment in the (individual or collective) employment contract for the first six months of the contract.
Please note: the possibility to deviate by collective employment agreement is restricted (see also: Deviations from the collective labour agreement in a nutshell). Under the new legislation unlimited deviation from the period of six months is no longer possible. One can only deviate from this period for by collective employment agreement to determine functions when it comes to "occasional work without fixed extent". This includes for example, on-call workers who occasionally carry out peak work, but it excludes on-call workers who carry out structural work. Furthermore, in particular sectors such as healthcare, it is prohibited to conclude a zero hours contract.
The former legislation shall continue to apply to employment contracts entered into before 1 January 2015. The former legislation shall also apply if a collective employment agreement was in effect on 1 January 2015 including the deviation possibilities until the expiration date of that collective employment agreement, but no more than one and a half years after 1 January 2015 (see also: Deviations from the collective labour agreement in a nutshell).
- Use the possibility to exclude continued wage payment during the first six months by including this in the employment contract.
- Assess in time, before the first six-month period expires, whether the employee a) is covered by the deviation possibility of the collective employment agreement, and if not b) assess whether the present form of the contract is suitable or whether a so-called 'min-max contract' or a temporary employment contract would be better.