New legislation enhances employment rights

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2001 saw a raft of new legislative measures in the Netherlands, aimed at improving employees' protection and rights. These included: new rights for fixed-term contract workers; a right to refuse Sunday working; new entitlements to leave for care purposes; and measures to combat discrimination on grounds of disability and age.

A variety of legislative measures on employees' protection and rights were proposed and adopted in 2001. Below, we highlight the most significant.

Fixed-term contracts

In 2001, the government transposed the 1999 EU Directive (1999/70/EC) on fixed-term work (EU9901147F) by amending the 1998 Act on Flexibility and Security (NL9901117F). As a result employees on fixed-term contracts have been given additional rights: equal treatment with workers on open-ended employment contract is more clearly defined; while the Act now explicitly set out the responsibility of employers to offer vacancies for open-ended positions internally to employees on fixed-term contracts.

The amendments brought some criticisms from employers' organisations, while believed that the balance between flexibility for employers and security for employees achieved in the 1998 Act - which was based on a compromise reached by the social partners - has been threatened, with the two concepts being split rather than considered together.

Sunday working

The 1996 Working Time Act (NL0110102F) removed the previous general ban on Sunday working, which prompted criticism in the Lower House of parliament, both on religious grounds and because Sunday working is considered undesirable by many employees. In 2001, members of the social democratic Labour Party (Partij van de Arbeid, PvdA), the main party in the ruling coalition, and the opposition Christian Democrats (Christen Democratisch Appèl, CDA) in the Lower House successfully put forward a legislative proposal to give employees the right to refuse to work on Sundays. This thus became the first amendment to the 1996 Working Time Act.

Work and care

Many of the various components of the framework Work and Care Act (NL9903128F) - which brings together various existing and new leave provisions and seeks to facilitate the reconciliation of work and family responsibilities - were implemented by parliament during 2001. In addition to the amendment of existing regulations, such as those governing maternity and parental leave, new regulations were adopted, notably:

  • the right to adjust working hours if personal circumstances require (NL0002182F);
  • two days of paid paternity leave;
  • four weeks' leave for couples who adopt a child; and
  • two days of paid leave per year for urgent personal reasons, along with 10 days of paid leave a year to care for family members.

Furthermore, childcare is now viewed as a basic provision, with the government responsible for ensuring access to such facilities, even for lower-income groups

The issue of long-term leave to take care of people with a serious illness in the employee's immediate family was not resolved in 2001. Lengthy studies were conducted by the government on the issue, specifically with regard to financial compensation for employees. It proposed to the Lower House that employees taking such leave should receive 70% of the minimum wage, with the leave lasting as long as the relevant illness continues.

Anti-discrimination measures

Several items of anti-discrimination legislation were implemented by parliament during the 2001/2 session, largely in response to the 2000 EU Directive (2000/78/EC) establishing a general framework for equal treatment in employment and occupation (EU0102295F).

The first new provision provides for equal treatment at work and in employment for employees with a disability or a chronic illness. Furthermore, the government will provide support facilities and the opportunity for individual employees to bring cases of potential direct or indirect discrimination before the courts. In a departure from the Directive, the Dutch government has opted to explicitly set out possible exceptions where deviations from the equal treatment principle will be permitted, such as those related to affirmative action or employee safety.

The second new provision refers to discrimination based on an employee's age, and seeks to do away with unjustified age limitations in employment issues. Possible exceptions to the rule are described in detail, but these would have to be objectively justifiable. Examples might include termination of an employee's contract upon reaching retirement age, or affirmative action to promote increased labour force participation among young people. Individual employees are granted the right to lodge complaints.

The Equal Treatment Committee (Commissie Gelijke Behandeling) will supervise compliance with the new legislation.

Commentary

The above measures are the most notable of a number of initiatives taken recently by the government and the Lower House of parliament to provide employees with greater protection against discrimination on various grounds, and with greater freedom to organise their own lives. The work and care measures were regarded as necessary because the Netherlands is seen as lagging behind in this area (in relation to the Scandinavian countries, for example) in the light of the fact that labour market participation among married and co-habiting women has doubled over the last 25 years. The modification to the Working Time Act, preventing employees from being obliged to work on Sundays, can be seen as another example of employee protection.

In the years ahead, it will become clear whether employers and employees are in a position to respond adequately to the new provisions. Whether or not the good intentions behind the new legislation are met depends largely on their actions. There has been considerably activity in seeking to explain all the new provisions - for example, the government has published a 'leave guide' on the internet, while employers' organisations have been busy explaining the changes and their consequences, especially to small and medium-sized businesses. Legislative proposals all require implementation and this needs to take place within the current 'deregulated' society. By definition, therefore, it cannot be assumed that this will always succeed first time around. (Marianne Grünell, HSI)

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