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The rules governing employment contracts underwent drastic changes in 2015. Notice requirements for fixed-term contracts, a new \u2018chain of contracts\u2019 rule, a ban on probationary periods for short-term fixed-term contracts, a ban on non-competition clauses in fixed-term contracts, changes to the obligation to continue paying wages for on-call workers, and more rights for your payroll staff. Do you still remember all of this? For anyone who\u2019s lost track a little, here\u2019s a quick recap of the most important changes.<\/p>\n
In the case of fixed-term contracts of six months or longer, you must inform the employee in writing, no later than one month before the agreed end date, whether or not you wish to renew the contract and, if so, under what terms.<\/p>\n
The notice requirement does not apply to contracts with a term of less than six months, nor to contracts for which the end date has not been specified. An example of such a contract is one covering the duration of a project.<\/p>\n
If you have informed the employee that you wish to extend their fixed-term contract but have not specified the terms, your employee will be offered a new fixed-term contract on the same terms. The new contract will run for the same duration as the previous fixed-term contract, but for no longer than one year.<\/p>\n
Notice pay<\/em><\/p>\n If you fail to comply with the notice requirement, the employee is entitled to one month\u2019s gross salary. If you give notice too late, you will be liable to pay pro rata compensation. The fixed-term employment contract will, however, end on the agreed expiry date.<\/p>\n In your payroll records, you must include the notice payment as pay from a previous employment, even if the notice payment is claimed whilst the employment contract is still in force. The pay component for the notice payment is the \u2018basic\u2019 hourly or piece-rate pay. Overtime or shift allowances, holiday pay, end-of-year bonuses or profit-sharing are not included in this. The wage therefore forms the basis for the compensation for failure to observe the (correct) notice period. This wage is calculated by multiplying the gross hourly wage by the agreed monthly working hours. The term \u2018working hours\u2019 refers to working days. This means that the calculation is based not on 30 or 31 calendar days per month, but on 20, 21 or 22 working days. The last month before the end of the employment contract is decisive for determining the amount of the notice pay. Suppose this month contains 22 working days and the employee works 7.6 hours per day (38 hours per week\/5 working days). To calculate the amount of the notice payment, the number of hours per day must be multiplied by the gross hourly wage and then multiplied by the number of working days per month. The notice payment is therefore 7.6 hours per working day \u00d7 hourly wage \u00d7 22 working days.<\/p>\n When determining the amount of the notice payment in the event of late notice, the number of calendar days in the month in which notice should have been given is taken into account. If the month has 31 days and, for example, you give notice two days late, you will owe compensation amounting to 2\/31st of the wage.<\/p>\n Please note! The notice payment will lapse if the employee does not request it within three months of the date on which your obligation to give notice arose. You are also not required to pay a notice payment in the event of bankruptcy, a suspension of payments or the application of the debt restructuring scheme for private individuals.<\/p>\n The chain provision sets out when successive fixed-term employment contracts are converted into a permanent contract. You may enter into a maximum of three fixed-term contracts with an employee within a 24-month period. Until 1 July 2015, this was a maximum of three fixed-term contracts within three years. If there is an intervening period of more than six months, the contracts are no longer considered consecutive. This means that if a fixed-term contract expires and you enter into a new contract with the same employee within six months, this intervening period counts towards the 24-month period. Until 1 July 2015, this interim period was three months.<\/p>\n Please note! In the coalition agreement of 10 October 2017, the government stated that the standard interval will remain at six months. Nevertheless, there must be scope to deviate from this at sector level and to shorten the interval if the nature of the work so requires, such as in the case of seasonal work. This option will be extended to other recurring temporary work that may be carried out for a maximum period of nine months. These arrangements will need to be set out in collective labour agreements.<\/p>\n In summary, a permanent contract is formed:<\/p>\n A collective agreement may, under very strict conditions, provide for exceptions to the number of contracts and the total duration. However, a maximum of six contracts is permitted over a four-year period. A collective agreement may not provide for exceptions to the six-month interval.<\/p>\n On 1 July 2016, it became legally possible to reduce, by collective agreement, the standard interval of no more than six months to no more than three months for the following roles:<\/p>\n As a result, employers who employ seasonal workers have more options for using fixed-term employment contracts.<\/p>\n Please note! The government has stated in the coalition agreement that the period after which successive fixed-term contracts are converted into a permanent contract will be extended again, from two to three years.<\/p>\n Once the maximum number of permitted fixed-term contracts has been reached, you are obliged to offer your employee a permanent contract if you wish to continue employing them.<\/p>\n The new chain provision does not apply to employees aged 18 or under who are on short-term contracts (12 hours or fewer).<\/p>\n It can sometimes be useful to take out two one-year contracts rather than three contracts over a maximum period of two years. This is because, in five sectors, a higher sectoral contribution applies to contracts with a term of less than one year. These are the following five sectors: agricultural businesses, construction firms, hospitality businesses, general cultural institutions and painting firms.<\/p>\n In its coalition agreement, the government has stated that it will examine how the differentiation of unemployment benefit contributions might help make permanent contracts more attractive. Instead of the current sector-based differentiation of unemployment benefit contributions, a system could be introduced for the first six months of unemployment benefit under which permanent contracts are subject to a lower contribution rate than fixed-term contracts, thereby making permanent contracts more attractive. It remains to be seen how and when these plans will be put into practice.<\/p>\n It is prohibited to include a probationary period in fixed-term employment contracts of six months or less. It is also prohibited to include a probationary period in a second or subsequent contract.<\/p>\n A new probationary period with the current employer is permitted if an employee is offered a new role that requires substantially different skills and responsibilities. However, the contract must be for a period of more than six months.<\/p>\n The length of a permitted probationary period depends on the duration of the contract:<\/p>\n Please note! In the aforementioned coalition agreement, the government has stated its intention to agree on a five-month probationary period for a first permanent contract. For multi-year contracts (> 2 years), the maximum probationary period will be extended from two to three months.<\/p>\n A non-competition or non-solicitation clause is prohibited in a fixed-term contract. This may only be waived if there are compelling business interests. Examples include specific or confidential business information. If you explicitly justify this compelling business interest in the employment contract, a non-competition or non-solicitation clause is still permitted in a fixed-term contract. However, for the non-competition clause to be truly effective, the compelling business interests must exist both at the time the clause is entered into and at the time you wish to invoke it.<\/p>\n Please note! As an employer, you cannot derive any rights from a non-competition or non-solicitation clause if there has been serious culpable conduct or negligence on your part. However, a non-competition clause included in a fixed-term employment contract that was agreed in writing before 1 January 2015 remains valid, even if the fixed-term employment contract did not commence until after 1 January 2015.<\/p>\n Do you employ on-call staff, for example under a zero-hours contract or a min-max contract? In principle, you are obliged to continue paying wages if your employee is unable to work due to a cause for which you are liable. This also applies, for example, if you do not call the employee in even though there is work available. In addition, the employee is entitled to pay for the guaranteed hours. This means that every time you call the employee in, they are entitled to at least three hours\u2019 pay, even if, for example, they only work for one hour.<\/p>\n In the employment contract, you may exclude your obligation to continue paying wages in writing during the first six months. However, you cannot exclude the right to wages for the guaranteed hours. After the first six months, the obligation to continue paying wages can only be excluded in the collective agreement for roles involving work of an \u2018occasional nature\u2019 and without a \u2018fixed scope\u2019. Examples of this include supply staff and agency workers.<\/p>\n Please note! The Government wishes to prevent zero-hours contracts from requiring permanent availability where the nature of the work does not necessitate this. In some sectors, undesirable situations arise where unnecessary availability also limits workers\u2019 ability to accept other (part-time) jobs, for example. It is therefore being stipulated that, in such situations, the employee is not obliged to respond to a call for work \u2013 or at least not within a specified period \u2013 or that they are entitled to pay in the event of a cancellation.<\/p>\n Payroll staff are employees who are formally employed by a company that provides payroll services, but who work for you as the client. As the client, you have recruited and selected these employees to work for you. The employees are made available to you under a payroll agreement.<\/p>\n On 4 November 2016, the Supreme Court ruled in the Care4Care case that an allocation function is not required for the conclusion of a temporary employment contract. This therefore means that payroll companies can be regarded as temporary employment agencies if supervision and management rest with the hirer, and that they may therefore make use of the simplified employment law regime, which means they are permitted to include a temporary employment clause in a contract with the payroll employee. Under this clause, the temporary employment contract terminates upon completion of the assignment or in the event of illness. Furthermore, they may exclude the obligation to continue paying wages for 78 weeks instead of 26 weeks, and may offer six contracts over a four-year period instead of three contracts over a two-year period. The Supreme Court has also ruled that the court may limit unintended consequences, by interpreting the law in such a way as to prevent it from contravening its underlying rationale, and by ruling that invoking the consequences of the temporary employment contract may be unacceptable according to standards of reasonableness and fairness.<\/p>\n The government has now also addressed the issue of payrolling in its coalition agreement. If the government has its way, payrolling will remain possible in principle, but will be structured in such a way that it serves as a tool to \u2018take the pressure off\u2019 employers rather than to create competition on terms and conditions of employment. A bill will be introduced declaring the simplified employment law regime applicable to temporary agency contracts to be inapplicable. Employees must be treated at least on a par with employees of the user organisation in terms of (primary and secondary) terms and conditions of employment. Furthermore, the definition of the temporary agency contract will remain unchanged. Feasibility is a key prerequisite for this proposal. In view of the broader labour market debate and the aim of making permanent contracts more attractive, the bill on payrolling will be linked to the proposals concerning continued pay during sickness, dismissal law and the amendment of the DBA Act.<\/p>","protected":false},"excerpt":{"rendered":" De regels voor arbeidscontracten zijn in 2015 drastisch gewijzigd. Aanzegverplichtingen bij tijdelijke contracten, een nieuwe ketenregeling, verbod op een proeftijd bij korte tijdelijke contracten, verbod op een concurrentiebeding in tijdelijke contracten, wijzigingen in de loondoorbetalingsverplichting bij oproepkrachten en meer rechten voor je payrollmedewerkers. Weet je het allemaal nog? Voor iedereen die het overzicht een beetje […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-579","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"acf":[],"_links":{"self":[{"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/posts\/579","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/comments?post=579"}],"version-history":[{"count":0,"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/posts\/579\/revisions"}],"wp:attachment":[{"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/media?parent=579"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/categories?post=579"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/vwg.nl\/en\/wp-json\/wp\/v2\/tags?post=579"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}New chain provision: a permanent contract more quickly<\/h4>\n
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Ban on probationary periods for short-term temporary contracts and subsequent contracts<\/h4>\n
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\n Duration of a fixed-term employment contract<\/strong><\/td>\n Maximum probationary period<\/strong><\/td>\n<\/tr>\n \n 0 to 6 months<\/td>\n N\/A.<\/td>\n<\/tr>\n \n More than 6 months but less than 2 years<\/td>\n 1 month<\/td>\n<\/tr>\n \n 2 years or more<\/td>\n 2 months<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Prohibition of non-competition clauses in fixed-term contracts<\/h4>\n
Obligation to continue paying wages to on-call workers<\/h4>\n
6. Strengthening the rights of payroll staff<\/h4>\n