Seasonal work is, by its very nature, temporary work. The aim of the Work and Security Act (WWZ) is to ensure that employees on temporary contracts can secure permanent employment more quickly. Even when the WWZ was first introduced, it was noted that this would generally not apply to seasonal work. One year after the law came into force, it has been amended to resolve the issues encountered in seasonal work.
The Work and Security Act
Under the Work and Security Act (WWZ), which has been in force since 1 July 2015, a permanent employment contract is created when the employer and the employee:
- enter into more than three consecutive fixed-term employment contracts;
- using consecutive fixed-term employment contracts for longer than two years.
Successive fixed-term employment contracts are defined as those which follow one another with an interval of 6 months or less.
For example, seasonal work
Here are a few examples to illustrate this.
Example 1
An employer enters into three consecutive six-month employment contracts with an employee. Any subsequent employment contract entered into within six months of that, even if it is a fixed-term contract, results in a permanent employment contract.
Example 2
An employee who carries out seasonal work works for the same employer for 7 months each year. As the intervals between contracts are less than 6 months, a permanent employment contract comes into effect from the start of the third year (season). The total duration of employment, including the intervals, then exceeds 2 years (24 months).
Example 2 also applies in the world of sport, where coaches, for instance, work for the same employer (a sports club) for a number of years on the basis of annual contracts. From the third year onwards, this constitutes a permanent employment contract, with all the associated complications (in particular, additional financial risks for the sports club).
Derogation from the collective agreement
The solution, which comes into effect on 1 July 2016 (this is part of the Act on the Terms and Conditions of Employment of Posted Workers) is that, in the case of seasonal work, collective agreements may deviate from the above rules, in that:
- maximum 6 (instead of 3) fixed-term contracts may be entered into;
- over a period of 4 (instead of 2) years and;
- where the chain is interrupted by an intervening period of more than 3 months (instead of more than 6 months).
without there being a permanent employment contract.
However, this is only permitted for genuine seasonal work. That is work which:
- is seasonal due to climatic or natural conditions and;
- may be carried out for a maximum of 9 months per year.
Examples of genuinely seasonal work include seasonal work in the:
- the agricultural and horticultural sector;
- the hospitality and leisure sector;
- amateur sport (provided that the sport is practised for part of the year).
It now remains to be seen, of course, whether and how the alternative chain provision will actually be incorporated into the collective labour agreements. This can be anticipated by including a clause in the fixed-term employment contract stating that the collective labour agreement, as it will read in future, applies.
Transition allowance
The relaxation of the chain rule does not affect the right to a transition payment. A temporary employee who has been in service for two years or more is entitled to this allowance upon dismissal. For this purpose, periods that have been interrupted for six months or less are added together. However, the periods of interruption do not count towards determining the amount of the transition allowance.