Implementation of the Directive on transparent and predictable working conditions (part 4): predictable work

On August 1, 2022, the law implementing the EU Directive on transparent and predictable terms of employment will come into force. This blog is the latest in a series of blogs explaining, one by one, the main changes from that bill.

This fourth and final blog addresses the changes related to predictable employment, such as the employee's request for more predictable terms of employment. Bas Blaauwhof explains what changes are being made.

(Un)predictable labor

The new law distinguishes between predictable and unpredictable labor. Labor is unpredictable when the work pattern is largely or entirely unpredictable. The most telling example is the on-call worker who only knows his working hours a short time in advance. Similarly, when a person works a fixed number of hours per week, but performs his work at different times each week, unpredictable labor can also exist. In the previous blog in this series, we informed you about the obligation to inform.

Reference days and hours

The new regulation has attempted to create more predictability for employees with wholly or largely unpredictable work patterns. Thus, the employee can only be required to perform work on reference days and hours determined in advance, for example in the employment contract. However, the legislature did not restrict the setting of those reference days and hours, making it possible to set all days and all hours.

Request for more predictable and secure working conditions

The implementation law also amends the Flexible Work Act by introducing a new provision. Under that provision, an employee can ask his employer for a form of work with more predictable and secure working conditions. For example, an employee can request to work on fixed days or times or for a different on-call period. Incidentally, employees cannot make such requests until they have been employed for at least 26 weeks.

Decision deadline

The employer must decide whether to grant the request within the statutory period in writing and with reasons. The decision period depends on the number of employees.

• < 10 werknemers = 3 maanden
• > 10 employees = 1 month

Within this period, an employer must decide as well as communicate its decision. If the employer does not decide within the deadline, the request is automatically deemed granted. Thus, the requesting employee is then automatically entitled to the requested changes.

It is notable that no further requirements are imposed on the response to the request. For example, the employer need not cite compelling business or service interests to justify a rejection. A reasoned rejection, sent to the requesting employee in a timely manner and in writing, is apparently sufficient.

Conclusion

As of August 1, you can only require your employee with unpredictable work patterns to perform work on predetermined reference days and hours. Be aware of this and check whether your employment contracts or personnel regulations comply with the new rules.

Be sure to respond to a request for some form of more predictable and secure terms and conditions of employment in a timely, written and reasoned manner if you do not want to grant that request. If you do not, you must apply the requested terms. 

The employment contract used by your company may no longer be up-to-date after the bill comes into effect. Please contact us so that we can reassess and update your employment contract in accordance with the (new) regulations.