EU Directive on transparent and predictable working conditions

20/07/22

More rights for employees within their employment

On 1 August 2022, the Act Implementing the EU Directive on Transparent and Predictable Terms of Employment (hereinafter: ‘the Tpte’) will enter into force. The EU Directive which this implements aims to give employees more rights within their employment. For example, the employer's information obligation is extended, a ban on ancillary activities is in principle no longer permitted and the employer must pay for compulsory training for employees. Employees will also receive a minimum level of a predictable and fixed work pattern.

Extension of information obligation at start of employment relationship

Employers are obliged to inform employees of the essential elements of the employment relationship. This ensures transparency and predictability of the employment conditions of the employee. The Tpte extends this information obligation by including amongst others the place(s) of work, the entitlement(s) to paid leave, the separate wage components and the duration and conditions of the probationary period.

Employers must also inform their employees of the times at which they have to work. In the case of ‘largely unpredictable working hours’, employees receive information on the number of guaranteed paid hours and the pay for the work performed in addition to those hours and the days and hours when the employee may be required to perform work.

A largely unpredictable working time exists when the employer determines to a large extent, directly or indirectly, the times at which the employee must work. This may also be the case despite a fixed working time and fixed remuneration having been agreed. Under the Tpte, employees with ‘largely predictable working’ hours are informed about whether they must work overtime and how these extra hours are remunerated and whether they must work changing shifts.

Obligation to inform departing posted workers

As of 1 August, employers must inform employees who will be posted to another EU Member State before departure about the wages to which they are entitled, the right to allowances related to the posting and any arrangements for reimbursement of travel, subsistence and meal costs and links to official national websites.

Ban on of ancillary activities in principle not permitted

In practice, employers and employees regularly agree on an ancillary activities clause. This clause contains a restriction or prohibition for the employee to perform any ancillary activities or obliges the employee to obtain permission from the employer to perform ancillary activities. With the entry into force of the Tpte, such a clause is null and void, unless the employer has an ‘objective justification ground’ for it.

The employment contract may describe when there is an objective justification ground. It is also possible for the employer to substantiate the objective justification fround when invoking the clause. Examples of justification grounds include health and safety, protecting the confidentiality of business information or avoiding conflicts of interest. This applies to both existing and future (collective) labour agreements.

The employer must pay for compulsory training

Employers often make the payment for training undertaken by the employee under the condition that the employee remains in the employer's service for a certain period of time. The sanction for non-compliance is that the employee must repay the employer a part of the costs of the training.

The Tpte prohibits employers from claiming the costs of the training from the employee that he is obliged to provide on the basis of the law or the applicable collective labour agreement. Under the Tpte, employers are obliged to provide training to the employee that is necessary for the employee to perform his or her duties or enables the continuation of the employment contract when his or her duties cease. Employers must also enable the employee, as far as reasonably possible, to follow the training during working hours.

Provisions that oblige an employee to repay the training contrary to the law are null and void. Agreeing on an obligation to repay training costs remains possible in other cases.

Predictable and secure work pattern

The EU Directive aims to provide employees with more predictable and secure working conditions and to enhance the predictability of work schedules.

Predictable working relationship

Employees already have the right to request the employer to adjust working hours, their working time and their workplace. As of 1 August, employees who have worked in the organisation for at least 26 weeks can also submit a written, substantiated request to the employer for a more predictable working relationship. For example, a more predictable schedule or a fixed scope of work. The legislator has not set a criterion by which the employer must assess this request. If the employer does not respond within one month, the employee's request is deemed to have been granted. For employers with up to ten employees, a period of three months applies.

Predictable work pattern

As of 1 August, for employees whose working hours are largely unpredictable, employers must specify which days and times they can be obliged to work. The employer can only schedule them on these days, otherwise employees are not obliged to work. Furthermore, employees must know at least four days in advance which days and times they will be required to work. If the employer cancels within the four days, the employee is still entitled to wages.

Review employment contracts and employment conditions regulations

We advise employers to check whether both the employment contracts concluded on or after 1 August and the employment conditions regulations are in line with the Tpte. They may need to be adjusted. Current employees can also ask their employer for additional information about their employment contract. Employers are obliged to provide this information to them.