29 January 2020
The ink from the so-called Borstlap Committee report on the future of the labour market was barely dry before local interest groups started falling over each other with their criticisms.
In this blog, we do it differently. Here is a summary of what some of the ideas of the Borstlap committee could mean for employers if the Dutch government were to adopt the ideas.
In the event of an employee’s illness, you would continue to paying wages for one year (instead of currently two years). The reintegration obligations would also be limited to one year and only to internal reassignment. Dismissal due to long-term illness could occur after one year, so that thereafter the prohibition to terminate would end.
The Borstlap committee proposes to maintain the preventive dismissal assessment: you would still be required to end the employment contract through the UWV or the subdistrict court judge (except in the case of instant dismissal or via a settlement agreement). However, the idea is that even if you had not built a file about the malfunction or disturbed relationship, or if the file was insufficient, then the subdistrict court judge would still dissolve the employment contract. Only if the employer had no reasonable grounds whatsoever would the subdistrict court judge award a (high) compensation.
The employer could unilaterally change the working time and salary (up to a certain percentage) within an employment contract for an indefinite period. The same would apply to the work location, working hours and position. All this, provided that business circumstances give reason to do so, the committee said. Such a unilateral change would occur through an offer for change by the employer that the employee would be obliged to accept, except in the case of serious interests. If collective unilateral changes were involved, the Works Council or trade union would also have a role to play.
With the above, the step to partial redundancy (in Dutch: “deeltijdontslag”) is made quickly, as the Borstlap committee does. The employee could therefore lose part of his employment contract outside a court- or UWV-procedure and based on an “offer” that the employee would in principle be obliged to accept. To make partial dismissal with, for example, the corresponding (much) lower salary acceptable to the employee, the employer would have to make a phase-out-scheme.
If it were up to the Borstlap Committee, an employer could no longer include a non-competition clause in a temporary employment contract; a possibility that was already limited with the Wwz since 2015. According to this idea, even in an employment contract for an indefinite period, a non-competition clause would only be permitted if you could substantiate the need for this based on compelling business interests (as is already the case with the temporary employment contract).
Before the Wwz you could offer three temporary employment contracts in a three-year period. That became three in a two-year period between 2015 and 2020. Since the WAB came into effect on January 1, 2020, there has been again more flexibility: three temporary employment contracts in three years (subject to expansion of the CLA). And what does the Borstlap committee want? Yet again the Wwz system, so you would go back to a shorter series of temporary employment contracts.
Employees with a temporary employment contract would receive a “flex allowance”; an amount in addition to their normal wage. Employers would have to pay employees with a temporary contract a higher statutory minimum wage, in order to compensate for the greater uncertainty that a flex contract entails, according to an idea from the Borstlap committee.
It is up to “politics and polder”, as it is called. Which ideas from this report will become law and, if so, in what form? That is also unclear to us at the moment. The other question is when the legislation would change, given that elections will take place within the year.
In short, for the time being these ideas are positively seen as “a utopian vision” and viewed negatively as “fear-mongering”.
We will continue to advise you on employment law based on Wwz and WAB and keep you informed of developments following this advice from the Borstlap committee.
If you have a question about this blog, please contact me.
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