After the world was literally locked up by the global Covid measures, everyone was ready to get back to work, to do business, to develop, to meet business partners and to travel. But a shortage of personnel seems to be curbing these ambitions of many entrepreneurs. All over the world, companies are struggling with a huge labour shortage. This is no different in the Netherlands. One place where this is very visible is Amsterdam Schiphol Airport where travellers queue for hours before departure and where recently flights are regularly cancelled as the airport cannot handle the huge number of passengers. Before Covid, Schiphol was one of the most important hubs in Europe, now it suffers from a shortage of security personnel and baggage handlers and ordering airlines to sell 10,500 fewer seats each month to be able to guarantee the safety of the passengers.
What can and should employers do to attract, find and retain employees?
In this regard, I refer you to The Legal 500 webinar of 29 June 2022 in which I had the pleasure of discussing the gig economy and the importance of accurately defining employment status with Francisca Burtenshaw, head of people, global DCS at CBRE, and Damian Bethke, a tech-GC and former head of legal at MessageBird, as well as with Linda Frietman, CEO of IamProgrez, a Dutch tech company that develops digital (competence and soft skill) assessments to bridge the gap between education and the labour market.
In addition to the labour shortage, which already causes great concern for entrepreneurs, as per 1 August 2022, a number of important changes in employment law will enter into force. By this date, Dutch legislation must be aligned with the ‘European directive for transparent and predictable employment conditions’ and employers need to be ready.
These employment law changes have far-reaching consequences for various employment conditions and clauses, such as the extension of Employer’s Information Obligation, the prohibition of the study costs clause and the prohibition on ancillary activities.
It is of great importance that you, as an employer, understand what your new mandatory obligations are (note that for most, no transitional law applies!) and that you have your standard contracts adjusted accordingly.
Prohibition of ancillary activities
As a basic principle, the employee will be allowed to have several jobs. An ancillary employment clause will therefore be null and void as of 1 August 2022, unless the clause can be justified on the basis of an objective reason.
A justification based on an objective reason for the application of a prohibition on ancillary activities may be included in the employment contract itself, but may also be given afterwards. For example, at the time the employer wants to invoke an ancillary employment clause.
Examples of an objective reason are: protecting the confidentiality of business information and avoiding a conflict of interest.
There is no transitional law for this. This regulation will therefore also apply to existing ancillary employment clauses.
May an employer then not put any obligation in the employment contract?
Certainly, we recommend including a clause stating that the employee must inform the employer if and what ancillary activities he performs or wishes to perform.
Existing terms remain valid to the extent that they do not have to contain the justification itself, but when they are invoked, it must be clear what the objective reason consists of.
Think carefully about what reason this should be and whether this reason can be objectively justified.
Schooling and study costs
Another new legal provision resulting from the implementation of the European directive is the training obligation.
This means that, as of 1 August 2022, the employer is obliged to provide training to his employees in order to execute the work for which they have been hired, the training shall be offered free of charge to the employee, the training time shall be regarded as working time and, if possible, it shall be offered during the hours in which the work is to be done.
Since training that is required by law must always be offered free of charge, a study costs clause that pertains to such training will soon be null and void. No transitional law applies. The consequence may be that existing study-costs clauses will no longer be valid from the moment the law enters into force.
No distinction is made between permanent, part-time and operational contracts; this applies to all employees.
Professional training courses or training courses that employees are obliged to attend in order to obtain, maintain or renew a professional qualification are exempted, as long as the employer is not obliged to offer them by law or under a collective bargaining agreement. This concerns so-called ‘regulated professions’ as included in the Directive 2005/36/EC on the recognition of professional qualifications.
Gig economy and employment law
As gig economy is keeping employment law specialists busy, the recent opinion of the Advocate General (AG) at the Dutch Supreme Court explains a pressing employment issue, namely whether platform-workers are employees or not based on the Deliveroo case in a 100-page opinion, which is an exciting read!
According to the AG the answer revolves around the interpretation of the criterion ‘in the service of the other party’ – the authority criterion. Hence whether the work is organisationally embedded in the company of the provider (the platform).
When determining whether the work is organisationally embedded in the company of the provider, the actual performance of the work should be the main focus. This is in line with the case law of the Court of Justice of the European Union and has major implications for the gig-economy if not properly addressed.
In this article I can only scratch the surface, but I would be happy to answer all your questions, just send me an email to: email@example.com.
About the author:
Edith Nordmann is managing partner and Attorney at Law at ACG International.
She is an experienced corporate and commercial litigator, has an expert qualification in employment law and is an international ADR certified mediator.
Nordmann is specialised in cross-border business transactions, taking into consideration not only the different legal systems, but also being acquainted with the various cultural differences that can make or break a deal.
As a public speaker she has shared this knowledge on various international conferences.
As managing partner of Attorney Consulting Group International (ACG International), Nordmann can combine all these skills and expertise for the benefit of her international clients. By using deep-seated local knowledge and proven (international) networks across practice areas and borders, she assists her clients in getting deals done and finding solutions that achieve the best results for their actual needs.
Being fluent in German (as a native speaker), English, Dutch, French and Italian and understanding difference in mentality, culture and legal systems across many different cultures and countries, she is able to help her clients in a unique way.
Next to her professional career Nordmann engages in many charitable and social organisations using her professional expertise, not only helping others but also empowering them in their endeavours.