Dutch
Civil Code
Book 7 Particular agreements
Title 7.10 Employment agreement
Section 7.10.1 General provisions
Article 7:610 Definition of 'employment agreement'
- 1. An employment agreement is an agreement
under which one of the parties (‘the employee’) engages himself
towards the opposite party (‘the employer’) to perform work
for a period of time in service of this opposite party in exchange for
payment.
- 2. When an agreement has the characteristics of both, an agreement as
meant in paragraph 1 and of another statutory regulated particular agreement,
then the statutory provisions of the present Title (Title 7.10) and the
statutory provisions set by law for this other particular agreement shall
apply simultaneously (side by side) to that agreement. In the event of
a conflict between these statutory provisions, the statutory provisions
of the present Title (Title 7.10) prevail.
Article 7:610a Presumption of the existence of an
employment agreement
A person who, in exchange for a remuneration, performs work on behalf
of another person for three consecutive months, and this weekly or for
at least twenty hours per month, is presumed to perform such work pursuant
to an employment agreement.
Article 7:610b Presumption of the number of contracted
working hours
Where an employment agreement has lasted for at least three months, the
contracted working hours in one month are presumed to equal the average
working hours per month over the three preceding months.
Article 7:611 Act as a 'reasonable and fair' employer
or employee
The employer and the employee must behave as befits a reasonable and fair
employer and a reasonable and fair employee.
Article 7:612 Employees under age
- 1. A minor who has reached the age of sixteen years, has the legal capacity
to enter into an employment agreement. With regard to all that is related
to this employment agreement he takes the same position as an adult to
an employment agreement, and he may appear in court without the assistance
of his legal representative.
- 2. If a minor without legal capacity has entered into an employment
agreement and, subsequently, performs work in the service of the employer
for a period of four weeks, during which his legal representative has
not invoked any ground of voidability based on his legal incapacity, then
this minor is considered to have obtained the approval of his legal representative
to enter into this employment agreement.
- 3. A minor without legal capacity who has entered into an employment
agreement with the approval of his legal representative, takes with regard
to all that is related to this employment agreement the same position
as an adult to an employment agreement, except with regard to what is
provided for in paragraph 4.
- 4. A minor without legal capacity cannot appear in court without the
assistance of his legal representative, except when the court has assessed
that the legal representative is not able to explain himself [this is
the case when the employment agreement has been entered into or has been
ended outside the Netherlands].
Article 7:613 Change of existing conditions of employment
The employer is only able to invoke a written stipulation which gives
him the right to change a condition of employment as laid down in the
employment agreement, if he has such weighty interests in making this
change that the interests of the employer, that would be harmed as a result
of this change, have to be set aside to standards of reasonableness and
fairness.
Article 7:613a [repealed on 04-03-1998]
Article 7:613b [repealed on 04-03-1998]
Article 7:613c [repealed on 04-03-1998]
Article 7:614 Prescription of a right of action to
nullify a voidable stipulation
With regard to grounds of voidability which are based on the present Title
(Title 7.10), the period meant in Article 3:52, paragraph 1, under point
(d), of the Civil Code starts from the day following the one on which
the voidable stipulation has been invoked.
Article 7:615 Employees in the public sector
The statutory provisions of the present Title (Title 7.10) do not apply
with respect to persons in service of the State, a Province, a Municipality,
a Water Board or some other public entity, unless they have been declared
applicable, either by or at the start of the employment service by or
on behalf of parties or by another statutory provision.
Article 7:616 Payment of wages on a specific date
The employer must pay the employee's wages on a specific date as set under
the employment agreement.
Article 7:617 Allowed kind of fixed wages
- 1. The determined kind of wages to be paid may not consist of something
else than:
a. money;
b. if this kind of wages is common or desirable
in view of the nature of the enterprise of the employer: things suitable
for personal use by the employee or members of his household, with exception
of liquor and other natural substances bad for a person's health;
c. the use of a residential space as well as
of its lighting and heating;
d. services, supplies and works performed by
the employer himself or by others for his account, including education,
board and lodging;
e. shares, stocks, options and participations,
debt-claims and other legal titles and certificates of proof of them and coupons,
holiday cheques and leave of absence vouchers.
- 2. The employer is not allowed to assign a higher value to the things,
services and supplies meant in paragraph 1, under point (b), (c) and (d),
than the real market value.
Article 7:618 Usual wages
Where the amount of the wages has not been determined in the employment
agreement, the employee is entitled to the usual wages paid at the moment
of the conclusion of the employment agreement for work performed under
this agreement or, when this criterion cannot be applied, to wages to
be determined in fairness in view of all circumstances of the situation
[if the employment is governed by a Collective Labour Agreement, then
the wages specified therein must be taken into account].
Article 7:619 Right of inspection of the employee
- 1. If the wages, in full or in part, consist of an amount of which the
level depends on any data appearing from the books, documents or other
data storage media of the employer, then the employee has a right to demand
that the employer produces the pieces of evidence which the employer needs
to establish these data.
- 2. Parties may by written agreement stipulate to whom, contrary to paragraph
1, the mentioned pieces of evidence must be submitted. It is not possible
to assign for this purpose employees in service of the employer who are
charged with keeping the books.
- 3. Only the employee has the right to invoke a ground of voidability
in order to nullify a stipulation which is in derogation from the statutory
provisions of paragraph 1 or 2.
- 4. If requested, the submission of the pieces of evidence by or on behalf
of the employer occurs under an explicit obligation to secrecy to be obeyed
by the employee and the one who replaces him in accordance with paragraph
2; the persons replacing the employee as meant in paragraph 2, however,
are not compelled to keep their confidentiality in their relation to the
employee, except as far as it concerns the profits made by the employer's
enterprise or a part of it.
Article 7:620 Payment of wages in legal currency
- 1. The payment of wages in money is done in Dutch legal currency or
by bank-giro payments in accordance with Article 6:114 of the Civil Code.
- 2. The payment of wages in money may be done in foreign currency if
this has been agreed upon. The employee is nonetheless entitled to demand
payment in Dutch legal currency as of the second coming payday. If a conversion
of currency is necessary, this will occur to the rate meant in Articles
6:124 and 6:126 of the Civil Code.
- 3. The performance of other kind of wages than those in money occurs
in accordance with what has been agreed upon to this end or, when such
an agreement has not been made, in accordance with customary practice
(usage).
Article 7:621 Legal consequences of a wrong payment
of wages
- 1. Where the wages are paid contrary to what is provided for in Article
7:620 or in another kind than permitted under Article 7:617, the employer
is not released from his obligation to pay the chargeable wages. The employee
preserves the right to claim from the employer the payment of the chargeable
wages or, when another kind of wages than money has been agreed upon,
the value of the chargeable performance, without the obligation to return
the wages that he has received as a result of the payment contrary to
what is provided for in Article 7:620 or in another kind than permitted
under Article 7:617.
- 2. Nevertheless, the court may, when awarding the legal claim of the
employee, restrict in its judgment the amount of wages to such a total
as it considers fair in the circumstances, but never further than to the
sum to be determined as the damage which the employee has suffered.
- 3. A right of action of the employee on the basis of the present Article
becomes prescribed on the expiry of six months after the day on which
the wages were paid contrary to what is provided for in Article 7:620
or in another kind than permitted under Article 7:617.
Article 7:622 Place of payment
Where wages in money are not paid out in the way as meant in Article 6:114
of the Civil Code [i.e. not by means of a bank-giro payment], they are
paid out, at the choice of the employer, either at the place where the
work is usually performed, at the employer's office if it is located in
the same Municipality as where the majority of the employees live, or
at the employee's home.
Article 7:623 Time of payment of wages fixed in money
terms
- 1. Wages fixed in money terms must be paid by the employer each time
after the ending of the period over which the wages are calculated according
to the employment agreement, on the understanding that the term of payment
is not shorter than one week and not longer than one month.
- 2. The period after which the wages have to be paid, may be extended
by written agreement, but for no longer then up to one month when the
period over which the wages are calculated according to the employment
agreement is a week or shorter, and for no longer then up to a quarter
of a year when the period over which the wages are calculated according
to the employment agreement is a month or longer.
- 3. Only the employee has the right to invoke the ground of voidability
in order to nullify a stipulation which is in derogation from the present
Article.
Article 7:624 Time of payment of other wages in money
- 1. If the amount of wages in money depends on the production of the
performed work, then the employer keeps up the terms of payment which
apply to wages fixed in money terms for similar work, unless other terms
of payment have been agreed upon with due observance of Article 7:623.
- 2. If the amount of the wages, as mentioned in paragraph 1, cannot yet
be assessed at the payday, then the employer has to make an advance payment
to the amount of the average wages of the employee over the three months
prior to the payday or, if that is not possible, to the amount of wages
usually paid for similar work.
- 3. Parties may agree in writing that the advance payment is set to a
lower amount, but not to less than three fourth of the amount of the average
wages over the three months prior to the payday or, respectively, of the
amount of wages usually paid for similar work.
- 4. As far as wages in money consist of an amount of which the level
(height) depends on any data appearing from the books, documents or other
data storage media of the employer, the employer has to pay these wages
as soon as it is possible to assess the amount of these chargeable wages,
on the understanding that at least once a year a payment of these wages
has to take place
- 5. Only the employee has the right to invoke the ground of voidability
in order to nullify a stipulation which is in derogation from the present
Article.
Article 7:625 Legal increase when wages are paid late
- 1. As far as wages in money, or the part
thereof that remains after deduction of what the employer may offset in
accordance with Article 7:628 and after deduction of what falls under
an entitlement of third persons in accordance of Article 7:633, are not
yet have been paid out at the latest on the third working day after the
day on which the wages should have been paid pursuant to Article 7:623
and 7:624, paragraph 1, the employee is entitled to an increase of his
wages due to delay, provided that the non-payment of wages is attributable
to the employer. This increase amounts for the period between the third
and ninth working day, five per cent per day over the delayed payment,
and for each next working day, one percent, on the understanding that
the total increase never can exceed half of the chargeable wages that
have been paid with delay. Nevertheless the court may restrict the increase
to such an amount as it considers fair in view of the circumstances.
- 2. It is not possible to derogate to the disadvantage of the employee
from the present Article.
Article 7:626 Payslip
- 1. At the occasion of each payment of wages
in money the employer must provide the employee with a written or electronic
payslip indicating the amount of the wages, the amounts of which they
are composed, the amounts which have been deducted from the wages as well
as the amount of wages to which a person of the age of the employee is
entitled by or pursuant to the Act on Minimum Wages and Minimum Holiday
Pay with regard to the period over which the wages are calculated, unless
none of these amounts have changed compared to the previous payment.
- 2. The payslip mentions in addition the
names of the employer and employee, the period over which the wages are
calculated as well as the contracted working hours.
- 3. The employer provides the electronic payslip
in such a way that it can be saved by the employee and shall remain accessible
to him for later inspection.
- 4. A payslip may only be provided electronically
with the explicit consent of the employee.
- 5. It is not possible to derogate to the
disadvantage of the employee from the present Article.
Article 7:627 When no work has been performed there
is no entitlement to wages
No wages are due over the period during which the employee has not performed
the contracted work.
Article 7:628 No work performed, but still an entitlement
to wages
- 1. The employee preserves the right to wages that are fixed in money
terms if he has not performed the contracted work due to a cause which,
reasonably, should be for account of the employer.
- 2. If the employee is entitled to a financial benefit pursuant to any
insurance prescribed by law or pursuant to any insurance policy or from
any fund in which participation has been agreed or which results from
the employment agreement, then his wages will be reduced by the amount
of that benefit.
- 3. The provisions of the present Article apply as well to wages in money
other than those in fixed money terms, on the understanding that for this
purpose these wages are considered to be the average wages which the employee
could have earned during that period if he had not been prevented from
earning them.
- 4. The wages are, however, reduced by the amount of the expenses which
the employee has saved because he did not perform the work.
- 5. Only with regard to the first six months of the employment agreement
it is possible to derogate to the disadvantage of the employee from paragraph
1 up to and including 4, provided this is done by written agreement.
- 6. In case of consecutive employment agreements in the sense of Article
7:668a, a derogation as referred to in paragraph 5 may only be agreed
upon for not more than six months in total.
- 7. After the period referred to in paragraph 5 has expired, it is only
possible to derogate to the disadvantage of the employee from the present
Article by Collective Labour Agreement or by a Regulation made by or on
behalf of a public governing body.
Article 7:628a Minimum claim to wages for each call
to perform work
- 1. Where a period of less than fifteen working hours per week has been
contracted and the working times have not been fixed or where the amount
of working hours has not or not clearly been fixed, the employee is for
every period of less than three hours in which he has performed work,
entitled to wages to which he would have been entitled if he had performed
work for three hours
- 2. It is not possible to derogate to the disadvantage of the employee
from the present Article.
Article 7:629 Inability to work due to sickness, pregnancy
or the delivery of a child
- 1. Where the employee is unable to perform the contracted work due to
sickness, pregnancy or the delivery of a child, he remains entitled to
70 % of his wages fixed in money terms for a period of 104 weeks, as far
as these wages are not higher than the maximum daily wages meant in Article
17 paragraph 1 of the Financing Social Security Act, on the understanding
that during the first 52 weeks of his inability to work he is at least
entitled to the minimum wages as set under law for a person of his age.
- 2. Where an employee, in service of a natural person, usually works
exclusively or nearly exclusively in the household of this natural person,
the right to wages referred to in paragraph 1 only lasts for a period
of six weeks.
- 3. The employee has no right to wages as referred to in paragraph 1:
a. if he has caused his sickness intentionally
or if his sickness results from a disability about which he has given
false information at his pre-employment medical examination and, because
of this, the test to determine if he meets the special medical fitness
requirements for the job could not be carried out correctly;
b. over the time during which his recovery
has been obstructed or slowed down by him or from his side;
c. over the time during which he, although
capable of doing so, did not perform suitable alternative work as meant
in Article 7:658a, paragraph 4, offered to him by his employer and to
be performed on behalf of his employer or of a third person appointed
to this end by his employer, unless he has a sound reason for not performing
this suitable alternative work;
d. over the time during which he has refused
to carry out reasonable instructions or measures issued, either by his
employer or by an expert appointed to this end by his employer, which
instructions or measures are intended to enable him to perform suitable
alternative work as meant in Article 7:658a, paragraph 4, unless he has
a sound reason for not properly responding to these instructions or measures;
e. over the time during which he has refused
to collaborate in making, evaluating or adjusting an action plan as meant
in Article 7:658a, paragraph 3, unless he has a sound reason for not cooperating;
f. over the time that has expired after the
moment on which he should have submitted an application for a social security
payment as meant in Article 64, first paragraph of the Act on Work and
Income in proportion to Labour Capacity, unless he has a sound reason
for this delay.
- 4. Contrary to paragraph 1, a female employee has no right to wages
as referred to in paragraph 1 over the period during which she enjoys
maternity or birth leave in accordance with Article 3:1 paragraph 2 and
3 of the Work and Care Act (she then receives full payment of her wages
from the State].
- 5. The wages are reduced by the amount of any financial payment to which
the employee is entitled pursuant to any social insurance required by
law and of any financial payment out of an insurance policy or from any
fund in which the employee has not contributed or participated. In addition
the wages are reduced by the amount of any income earned by the employee,
in or out of service, for work he has performed during the period in which
he could have performed the contracted work for the employer if he would
not have been unable of doing so.
- 6. The employer is entitled to withhold the payment of wages referred
to in paragraph 1 over the period during which the employee has not complied
with reasonable written checking instructions of the employer concerning
the provision of information needed by the employer to determine the employee's
right to wages.
- 7. The employer cannot invoke any ground meant in the present Article
for any non-payment of wages or for withholding any payment of wages if
he has not notified the employee of this ground immediately after he suspected
or should have suspected its existence.
- 8. Article 7:628, paragraph 3, applies accordingly.
- 9. It is not possible to derogate to the disadvantage of the employee
from the present Article, with the exception that the employer may stipulate
that the employee has no right to wages over the first two days of the
time period referred to in paragraph 1 or 2.
- 10. For the purpose of paragraph 1, 2 and
9, periods of time in which the employee has been unable to perform his
work due to sickness, pregnancy or the delivery of a child will be added
up together if they have followed each other in succession with an interruption
of less than four weeks. Periods in which the employee has enjoyed maternity
or birth leave in accordance with Article 3:1 paragraph 2 and 3 of the
Work and Care Act are not taken into account in determining the interruption
period of four weeks, unless the inability to work prior to the maternity
or birth leave reasonably cannot be considered to result from the same
cause as the inability after the maternity or delivery leave.
- 11. The period of 104 weeks, meant in paragraph
1, is extended:
a. with the duration of the delay if the application,
meant in Article 64 paragraph 1 of the Act on Work and Income in proportion
to Labour Capacity, is later submitted than it should have under that
Article;
b. with the duration of the extended period
as determined by the Social Security Agency on the basis of Article 24
Act on Work and Income in proportion to Labour Capacity, and with the
duration of the period, meant in Article 25, ninth paragraph, first sentence,
of that Act;
c. with the duration of the prolongation of
the waiting period, meant in Article 19, first paragraph, of the Invalidity
Insurance Act, if that waiting period is extended pursuant to the seventh
paragraph of that Article; and
d. with the duration of the period as determined by the Social Security
Agency on the basis of Article 71a, ninth paragraph, of the Invalidity
Insurance Act.
- 12. If the employee performs suitable alternative
work as meant in Article 7:658a. paragraph 4, the employment agreement
remains fully in force.
- 13. For the purpose of paragraph 2, by 'work
performed in the household' is understood also the provision of care to
members of that household.
Article 7:629a Second opinion medical examination
- 1. The court rejects a legal claim of the employee for payment of wages
as meant in Article 7:629 if this claim is not accompanied by a declaration
of an expert who has been appointed by the Social Security Agency, mentioned
in Chapter 5 of the Structure Social Security Agency for Work and Income
Act, concerning the inability of the employee to perform the contracted
work or suitable alternative work or, if relevant, concerning the compliance
of the employee with his duties meant in Article 7:660a.
- 2. Paragraph 1 does not apply if the inability or, if relevant, the
non-compliance is not disputed or if the submission of an expert declaration
reasonably cannot be expected of the employee.
- 3. The expert who has accepted his appointment, is obliged to perform
the examination impartially and to the best knowledge and understanding.
- 4. An expert who is a medical doctor may gather information about the
employee, important for his examination, from the treating physician or
physicians. They will provide the requested information as far as the
personal life and privacy of the employee will not be harmed disproportionally
as a result.
- 5. The court may, upon the request of one of the parties or of its own
motion, order the expert to clarify or extend his declaration in writing
or verbally.
- 6. With regard to a legal claim as meant in paragraph 1, the employee
can only be ordered to pay the employer's costs of proceedings mentioned
in Article 237 of the Code of Civil Procedure in case of obviously unreasonable
use of procedural law.
- 7. It is possible to stipulate by Collective Labour Agreement or by
a Regulation made by or on behalf of a public governing body that the
expert referred to in paragraph 1 may be appointed by another institute
or person than the Social Security Agency, mentioned in Chapter 5 of the
Structure Social Security Agency for Work and Income Act.
Article 7:629b [repealed on 01-12-2001]
Article 7:630 Employer who is prevented from paying
out wages in kind
- 1. As far as the chargeable wages consist
of something else than money (wages in kind), the employer who is temporarily
prevented from paying out these wages has to pay a compensation to the
employee of which the amount is determined by agreement or, if such an
agreement does not exist, by the court in accordance with common practice
(usage) or fairness, provided that the incapability to pay out these wages
has not been caused by or through the employee.
- 2. It is not possible to derogate to the disadvantage of the employee
from the present Article.
Article 7:631 Withholding wages and imposed spending
- 1. A contractual provision which gives the employer the right to withhold
any wages at the pay day, is null and void, notwithstanding the competence
of the employee to provide the employer a written procuration (power of
attorney) to use the payable wages to make certain payments in the employee's
name. This procuration (power of attorney) is at all times revocable.
- 2. Contractual stipulations under which the employee has committed himself
towards the employer to spend any amount of the received wages or of his
other earnings [like tips] in a certain way, and contractual stipulations
under which the employee has committed himself to get his necessities
at a certain place or from a certain person, are null and void.
- 3. Paragraph 1 and 2 do not apply to contractual provisions or stipulations
under which the employee has committed himself:
a. to take part in a pension fund as meant
in Article 1 of the Pensions Act and to live up to the provisions of that
Act;
b. to contribute in a premium payment for an
insurance in accordance with the regulations as set for this purpose in
the Pensions Act;
c. to take part in another fund than the one
meant under point (a), provided that this other fund meets the requirements
set by Order in Council;
d. to take part on his behalf in a savings
scheme other than the ones meant under point (a), (b) and (c), provided
that this scheme meets the requirements set by Order in Council.
By another fund in the meaning of point (c) is not understood a fund with
the objective to distribute to the employer or employee a benefit related
to the right of the employee to preserve his right to wages during sickness,
pregnancy or the delivery of a child as meant in Article 7:629, paragraph
1, nor a benefit as meant in Article 83 of the Act on Work and Income
in proportion to Labour Capacity, nor as meant in Article 75a of the Invalidity
Insurance Act.
- 4. In order to comply with the contractual provisions and stipulations
referred to in paragraph 3, the employer may withhold the necessary amounts
from the wages payable to the employee; he then is obliged to use these
amounts on behalf of the employee in accordance with the contractual provisions
and stipulations.
- 5. Article 7:612 applies accordingly to the participation of a minor
in a regulation as meant in paragraph 3.
- 6. If the employee, due to a null and void contractual provision or
stipulation as meant in paragraph 2, has entered into an agreement with
the employer or a third person, then he is entitled to claim back from
his employer all that he has paid or performed for this reason. Moreover,
if he has entered into an agreement with his employer, he is entitled
to nullify this voidable agreement entirely.
- 7. Where the court awards a legal claim of the employee pursuant to
paragraph 6, it may reduce the employer's payment obligation to such an
amount as it considers fair in view of the circumstances, but not to an
amount less than the damage suffered by the employee as established by
the court itself.
- 8. The employee's right of action based on the present Article becomes
prescribed on the expiry of six months after the day on which the employee's
debt-claim has come to existence.
Article 7:632 Offsetting of wages
- 1. At the end of the employment agreement the employer is entitled to
set off his obligation to pay wages against all debt-claims he has against
the employee. During the employment agreement he may only set off his
debts resulting from the obligation to pay wages against the following
debt-claims against the employee:
a. debt-claims for damages that the employee has
to pay to the employer;
b. debt-claims for fines which the employee is indebted
to the employer according to Article 7:650, provided that the employer
hands over written evidence indicating the amount of each fine as well
as the moment on which it was imposed and the reason for imposing it,
mentioning in addition the contractual provision of a written agreement
that has been violated;
c. debt-claims resulting from advance payments of
wages, paid by the employer to the employee in money, provided these payments
are proved in writing;
d. debt-claims for the amount for which the employer
has received more wages than to which he was entitled;
e. debt-claims related to the rent of a house or
another space, of a parcel of land or of equipment, machines or tools
which have been used by the employee in the conduct of his own business
and which have been leased out by the employer to the employee under a
written agreement.
- 2. A setoff of debt-claims against payable wages is not possible for the
part of the wages for which a seizure of these wages by a third person
would not be valid either. With regard to what the employer could claim
pursuant to paragraph 1, point (b), he may, at each payment, only set
off a tenth part of the wages in money which should have been paid at
that moment.
- 3. The amount which the employer withholds from the paid out wages on
account of a seizure of a third person, must be deducted from the maximum
amount of the wages that he may set off against his own debt-claims.
- 4. A contractual stipulation granting the employer a more extensive
right of setoff is voidable, on the understanding that the employee is
entitled to nullify each setoff declaration of the employer separately
that was based on the presumption that this stipulation is valid.
Article 7:633 Transfer of debt-claims (assignment) and
establishing a pledge
- 1. Where a third person has acquired a right in or related to the wages
of the employee on the basis of a transfer of his debt-claim by the employee
or on the basis of a pledge or another operation, this is only valid insofar
a seizure of the wages of the employee would have been valid.
- 2. A procuration (power of attorney) with regard to the employee’s
debt-claim for wages must be granted in writing. At all times this procuration
(power of attorney) is revocable.
- 3. It is not possible to derogate from the present Article.
Section 7.10.3 Holiday and leave
Article 7:634 Accrue of holiday entitlements
- 1. For every year in which the employee has been entitled to wages over
the full contracted working hours, he builds up holiday entitlements of
at least four times the working hours contracted per week or, if the contracted
working hours have been expressed in hours per year, of at least an equivalent
period.
- 2. The employee who has been entitled to wages for just a part of the
year, builds up holiday entitlements in proportion to the holiday entitlements
he would have build up if he would have been entitled to wages over the
full contracted working hours for the entire year.
- 3. It is possible to derogate from paragraph 2 by Collective Labour
Agreement or by a Regulation by or on behalf of a public governing body
with respect to employees whose employment agreements will end after being
in force for at least one month, in the sense that the building up of
holiday entitlements may be calculated over periods of one month.
Article 7:635 Specific rules for the building up of
holiday entitlements
- 1. Contrary to Article 7:634, the employee also builds up holiday entitlements
over the period during which he has not been entitled to wages in money,
because:
a. he is called as a conscript to perform his
military service or alternative service other than for incidental practice
and training;
b. he enjoys a holiday as meant in Article
7:641, paragraph 3;
c. he takes part, with authorisation of the
employer, in a meeting organised by a trade union of which he is a member;
d. he is, against his will, not able to perform
the contracted work for another reason than as a result of an inability
to work meant in paragraph 2 up to and including 4;
e. he enjoys a leave as meant in Article 7:643;
f. he enjoys a leave as meant in Chapter 5,
Section 2 of the Work and Care Act.
- 2. Contrary to Article 7:634, a female employee, who did not build up
holiday entitlements over the entire year due to pregnancy or the delivery
of a child, builds up holiday entitlements over the full contracted working
hours during which she has been entitled to a payment as meant in Chapter
3, Section 2 of the Work and Care Act.
- 3. Contrary to Article 7:634, the male or female employee, who did not
build up holiday entitlements over the entire year due to adoption leave
or foster child leave, builds up holiday entitlements over the full contracted
working hours during which he or she was entitled to a payment as meant
in Chapter 3, Section 2 of the Work and Care Act.
- 4. Contrary to Article 7:634, the employee who does not perform the
contracted work due to sickness, regardless whether he has a right to
wages during this period, builds up holiday entitlements over the last
six months during which he was unable to work, on the understanding that
periods are added up together if they have followed each other in succession
with an interruption of less than one month. Where the employee has only
partially not performed the contracted work due to sickness, he only builds
up holiday entitlements in proportion to what he would have build up if
he would have performed work during the full contracted working hours.
If the employee has caused his sickness intentionally or if his sickness
results from a disability about which he has deliberately given false
information at his pre-employment medical examination, then he will not
build up any holiday entitlements over this time either. The employee
neither builds up holiday entitlements over the time during which his
recovery has been obstructed or slowed down by or through him, over the
time during which he, although capable of doing so, did not perform suitable
alternative work as meant in Article 7:658a, paragraph 4, offered to him
by his employer and to be performed on behalf of his employer or of a
third person appointed to this end by his employer with the approval of
the Social Security Agency, unless he has a sound reason for not performing
this suitable alternative work, and over the time during which he has
refused to carry out reasonable instructions or measures issued, either
by his employer or by an expert appointed to this end by his employer,
which instructions or measures are intended to enable him to perform suitable
alternative work as meant in Article 7:658a, paragraph 4, unless he has
a sound reason for not properly responding to these instructions or measures.
- 5. A youthful employee builds up holiday entitlements over the time
during which he has received an education with regard to which his employer
is legally obliged to give him the opportunity.
- 6. If the build up holiday entitlements exceed the minimum referred
to in Article 7:634, then it is possible to derogate by written agreement
from paragraph 1 up to and including 4 to the disadvantage of the employee,
but only with regard to the holiday entitlements exceeding this minimum.
Article 7:636 Days to be regarded as holiday
- 1. Days or parts of days on which the employee has not performed the
contracted work due to a reason referred to in Article 7:635, paragraph
1, 4 and 5, may only be regarded as holiday if the employee has agreed
to this in each occurring situation, on the understanding that the employee
at least remains entitled to a minimum holiday as meant in Article 7:634.
- 2. Days or parts of days on which the employee has not performed the
contracted work due to a reason referred to in Article 7:635, paragraph
2 and 3, can never be regarded as holiday.
Article 7:637 Sickness and holiday
- 1. It is possible to stipulate by written agreement that days or parts
of days on which the employee in some year has not performed the contracted
work due to the reason referred to Article 7:635, paragraph 4, are regarded
as holiday, but only where it concerns the agreed holiday entitlements
for that year which exceed the minimum meant in Article 7:634.
- 2. Days or parts of days of an already determined holiday on which the
employee has been ill, do not count as holiday. It is possible to stipulate
by written agreement, in derogation from the previous sentence, that in
some year days of a determined holiday or a part thereof on which the
employee has been ill are regarded as holiday, but only where it concerns
the agreed holiday entitlements for that year which exceed the minimum
meant in Article 7:634.
- 3. If in some year both, paragraph 1 and paragraph 2, second sentence,
have been applied, then the total number of days that under these paragraphs
have been pointed out as holiday cannot exceed the agreed holiday entitlements
above the minimum meant in Article 7:634.
Article 7:638 Determination of holiday periods
- 1. The employer must provide the employee each year the opportunity
to take a holiday in accordance with the minimum holiday entitlements
to which the employee is entitled under Article 7:634.
- 2. Insofar a written employment agreement, a Collective Labour Agreement,
a Regulation by or on behalf of a public governing body or the law does
not provide a rule for the determination of holiday periods, the employer
has to determine the dates on which the holiday starts and ends in agreement
with the requests made to this end by the employee, unless compelling
reasons oppose against awarding these requests. If the employer has not
mentioned such compelling reasons in writing within two weeks after the
employee has addressed his written request to him, then the holiday periods
will be fixed in accordance with the request of the employee.
- 3. In the event of compelling reasons the holiday periods will be determined
in such a way that the employee, if he desirers so, does not have to perform
work for two consecutive weeks or for twice one full week, to the extent
that his holiday entitlements are sufficient to cover this leave.
- 4. The employer determines the holiday dates in such good time that
the employee has the opportunity to make sufficient preparations for spending
the holiday.
- 5. The employer may, after consulting the employee, change already determined
holiday periods, provided that there are compelling reasons for doing
so. The damage suffered by the employee as a result of the change of an
already determined holiday period must be compensated by the employer.
- 6. The employer is obliged to grant the employee the remaining holiday
entitlements in days or hours, unless compelling reasons oppose against
this.
- 7. If the build up holiday entitlements exceed the minimum meant in
Article 7:634, it is possible to derogate by written agreement to the
disadvantage of the employee from the holiday times mentioned in paragraph
2, but only to the extent that the holiday entitlements exceed that minimum.
Article 7:639 Right to wages during holiday leave
- 1. The employee preserves his right to wages during his holiday leave.
- 2. If a Collective Labour Agreement or a Regulation by or on behalf
of a public governing body provides a rule to this end, then the employer
may comply with his obligation to pay the wages during the holiday leave
either by transferring holiday cheques to the employee which will be paid
by a fund or by making payments to a fund on account of which the employee
acquires equivalent rights. For the purpose of the present Article holiday
cheques are considered as wages.
Article 7:640 Pay off of not used holiday entitlements
- 1. As long as the employment agreement is in force, the employee cannot
waive his holiday entitlements in exchange for compensatory damages.
- 2. If the build up holiday entitlements exceed the minimum meant in
Article 7:634, it is possible to derogate by written agreement from paragraph
1, but only to the extent that the holiday entitlements exceed that minimum.
Article 7:641 Not used holiday entitlements at the
end of the employment agreement
- 1. Where the employee at the end of the employment agreement still has
not used up all his existing holiday entitlements, he has a right to obtain
a payment in money to the amount of the wages over a period equal to the
remaining holiday entitlements expressed in days and hours, unless Article
7:639, paragraph 2, is applicable.
- 2. The employer must hand over to the employee a written declaration
indicating how many days and hours the employee at the end of the employment
agreements still may enjoy as holiday on account of his not used existing
holiday entitlements.
- 3. If the employee after the end of the employment agreement enters
into a new employment agreement, then he is towards the new employer entitled
to enjoy the day and hours of his not used existing holiday entitlements
as indicated on the written declaration of his former employer meant in
paragraph 2 as holiday, but without having a right to wages during these
days of leave against his new employer.
- 4. It is possible to derogate from paragraph 3 by written agreement,
on the understanding that the employee at least remains entitled to enjoy
a minimum holiday leave as meant in Article 7:634.
Article 7:642 Prescription of holiday entitlements
A right of action to take a holiday leave becomes prescribed on the expiry
of five years after the last day of the calendar year in which the holiday
entitlement was build up.
Article 7:643 Unpaid political leave
- 1. The employee may demand that the employer grants him a leave, without
preserving his right to wages during his absence, for attending the meetings
of the First Chamber of the States General (Parliament), the meetings
of representing bodies of government authorities elected directly by the
public, with the exemption, however, of the Second Chamber (House of Commons)
of the States General, and for attending the meetings of commissions formed
by these representing bodies. This provision applies as well to the employee
who is a member of the public body charged with the general management
of a Water Authority.
- 2. If the employer and employee cannot come to terms on an issue concerning
this leave, then the court determines, upon the request of the most interested
party, to what extent this leave must be granted. In making its judgment,
the court determines to what extent the employer reasonably can be expected
to accept the absence of the employee in view of the importance connected
with the fact that the employee is able to attend the meetings referred
to in paragraph 1. The court's judgment is enforceable immediately.
- 3. Paragraph 1 and 2 apply accordingly to members of the Provincial
Executive, Aldermen of a Municipality and members of the Executive Bboard
of a Water Authority whose position is not regarded as a full paid position.
By Order in Council will be stated which members of the Provincial Executive
and which Aldermen will be regarded to have a full paid position for the
purpose of the present Article.
- 4. The present Article does not apply to those groups of employees for
whom another regulation has been issued by or pursuant to law on account
of salary paid by the government.
Article 7:644 [repealed on 01-12-2001]
Article 7:645 Mandatory law
It is not possible to derogate to the disadvantage of the employee from
Articles 7:634 up to and including 7:643, unless such a derogation is
permitted under these Articles themselves.
Section 7.10.4 Equal treatment
Article 7:646 No discrimination on the basis of gender
(equality between men and women)
- 1. Employers may not discriminate between
men and women when entering into an employment agreement, nor when providing
training for employees, determining the terms and conditions of employment,
deciding on promotion, or terminating an employment agreement.
- 2. As far as it concerns the subjects of
entering into an employment agreement or the provision of training, it
is possible to derogate from paragraph 1 if the discrimination is based
on gender related characteristics which, in view of the nature of the
specific work to be performed or of the context in which this work has
to be performed, forms an essential and decisive professional requirement,
provided that the objective is legitimate and that the requirement is
in proportion to this objective. Section 5, Subsection 3 of the Equal
Treatment (Men and Women) Act applies accordingly.
- 3. It is permitted to derogate from paragraph
1 if it concerns conditions or stipulations related to the protection
of women, particularly in connection with pregnancy or motherhood.
- 4. It is permitted to derogate from paragraph
1 if it concerns conditions or stipulations which intend to place female
employees in a privileged position in order to eliminate or reduce existing
disadvantages, and the discrimination is in reasonable proportion to this
objective.
- 5. In the present Article by:
a. 'discrimination' is understood a direct
or indirect discrimination as well as an instruction to apply such discrimination.
b. 'direct discrimination' is understood the
situation in which a person is or would be treated differently on the
basis of his gender than another person in a similar situation, on the
understanding that indirect discrimination includes also a discrimination
on the basis of pregnancy, childbirth or motherhood.
c. 'indirect discrimination' is understood
the situation in which an apparently neutral provision, standard or method
affects, in comparison to other persons, in particular persons of a certain
gender.
- 6. The prohibition of direct discrimination,
laid down in the present Article, includes also a prohibition of harassment
and a prohibition of sexual harassment.
- 7. By 'intimidation' as meant in paragraph
6 is understood: behaviour related to the gender of a person and of which
the purpose or effect is the violation of a person's dignity and the creation
of an intimidating, hostile, degrading, humiliating or offending environment.
- 8. By 'sexual intimidation' as meant in
paragraph 6 is understood: any form of verbal, non-verbal or physical
behaviour of a sexual nature of which the purpose or effect is the violation
of a person's dignity, in particular when creating an intimidating, hostile,
degrading, humiliating or offensive environment.
- 9. An employee who rejects or passively
submits to the behaviour meant in paragraph 7 and 8, may not be treated
adversely by the employer.
- 10. The prohibition of discrimination, laid
down in paragraph 1, does not apply to indirect discrimination that is
objectively justified by a legitimate objective and the means for reaching
this objective are appropriate and necessary.
- 11. A contractual provision in conflict with
paragraph 1 is null and void.
- 12. If a person thinks that he is or has
been discriminated to his disadvantage as meant in the present Article
and he adduces, in court, facts that give rise to the presumption that
such a discrimination indeed has occurred, then the opposite party must
prove that he has not acted in conflict with the provisions the present
Article.
- 13. Paragraph 2 and 3 do not apply to a prohibition
of harassment and sexual harassment meant in paragraph 6.
Article 7:647 No adverse treatment of employees who
invoke ä non-discrimination rule
- 1. A termination of the employment agreement by the employer in conflict
with Article 7:646, paragraph 1, on the ground that the employee has invoked
Article 7:646, paragraph 1, either in court or otherwise, or that he has
assisted someone else to this point, is voidable .
- 2. If the employee does not invoke the ground of voidability referred
to in the previous paragraph within two months after the termination of
his employment agreement, then the right to do so has ceased to exist.
Article 3:55 of the Civil Code does not apply.
- 3. A right of action related to the nullification of a voidable termination
as mant in the present Article becomes prescribed on the expiry of six
months after the day (effective termination date) on which the employment
agreement has ended by termination.
- 4. A termination meant in Article 7:646, paragraph 1, does not make
the employer liable for damages.
- 5. The employer may not treat the employer adversely because of the
fact that the employee has invoked Article 7:646, paragraph 1, either
in court or otherwise, or because he has assisted someone else to this
point.
Article 7:648 No discrimination on the basis of working
time (full-time/part-time)
- 1. In the conditions subject to which an
employment agreement is entered into, continued or terminated, employers
may not discriminate between employees on the basis of a difference in
the contracted working hours (full-time/part-time), unless such a discrimination
is objectively justified. A termination of the employment agreement by
the employer in conflict with the previous sentence or because of the
fact that the employee has invoked the provisions of the previous sentence,
either in court or otherwise, or because he has assisted someone else
to this point, is voidable. Article 7:647, paragraph 2 and 3, apply as
well.
- 2. A contractual provision or stipulation
in conflict with paragraph 1 is null and void.
- 3. A termination as meant in the first sentence
of paragraph 1 does not make the employer liable for damages.
- 4. The Commission, mentioned in Article
1 of the Act for a Commission of Human Rights, may examine whether a discrimination
as referred to in paragraph 1 is taking place or has been taken place.
Articles 10, 12, 13, 22 and 23 of the Act for a Commission of Human Rights
shall apply accordingly.
- 5. The employer may not treat the employee
adversely because of the fact that the employee has invoked paragraph
1, either in court or otherwise, or because he has assisted someone else
to this point.
Article 7:649 No discrimination on the basis of indefinite
or temporary employment agreements
- 1. In the conditions of employment employers
may not discrimate between employees on the basis of the indefinite or
temporary character of their employment agreements, unless such a discrimination
is objectively justified.
- 2. A termination of the employment agreement
by the employer because of the fact that the employee has invoked the
provisions of paragraph 1, either in court or otherwise, or because he
has assisted someone else to this point, is voidable. Article 7:647, paragraph
2 and 3, apply as well.
- 3. A contractual provision or stipulation
in conflict with paragraph 1 is null and void.
- 4. The Commission, mentioned in Article
1 of the Act for a Commission of Human Rights, may examine whether a discrimination
as referred to in paragraph 1 is taking place or has been taken place.
Articles 10, 12, 13, 22 and 23 of the Act for a Commission of Human Rights
shall apply accordingly.
- 5. The employer may not treat the employee
adversely because of the fact that the employee has invoked paragraph
1, either in court or otherwise, or because he has assisted someone else
to this point.
- 6. The provisions of paragraph 1 up to and
including 5 do not apply to an employment agency agreement (secondment
agreement) as meant in Article 7:690.
Section 7.10.5 Some particular
stipulations in an employment agreement
Article 7:650 Contractual penalty clause
- 1. The employer may only set a penalty on the violation of a contractual
provision of the employment agreement if in the employment agreement itself
is specified that a violation of this particular contractual provision
will be fined with a penalty and to what amount.
- 2. The agreement in which a penalty clause has been stipulated, must
be concluded in writing.
- 3. The agreement in which a penalty clause has been stipulated, mentions
precisely how the received penalty will be used. A penalty may not have
the result that the employer or the person to whom he has granted the
right to impose a penalty on the employee, obtains a personal advantage
because of it.
- 4. Every penalty, stipulated in an employment agreement, must be set
to a specific amount, expressed in the same currency as in which the wages
are determined.
- 5. Over a period of one week, the employer may not charge the employee
with penalties for a higher total sum than the employee's wages for half
a day. No separate penalty may be set to a higher amount than the employee's
wages for half a day.
- 6. Each contractual provision in conflict with a provision of the present
Article is null and void. However, it is permitted to derogate by written
agreement from the provisions of paragraph 3, 4 and 5, as far as it concerns
employees whose wages fixed in money amounts more than the minimum wages
set by law for employees of the same age. If such a derogation has been
made, then the court may at all times set the penalty at a smaller sum
if it thinks the imposed penalty is excessive.
- 7. If afterwards the amount of wages, mentioned in paragraph 6, are
modified, then the effect of contractual provisions derogating from paragraph
3, 4 and 5, is suspended towards the employee whose wages fixed in money
do not exceed the modified amount of the minimum wages.
- 8. For the purpose of the present Article, the setting and stipulation
of a penalty includes the situation where the employer has stipulated
a penalty as meant in Article 6:91 up to and including Article 6:94.
Article 7:651 Contractual penalty and the right to
claim damages
- 1. The possibility to impose a contractual penalty does not effect the
right to claim damages by virtue of law. However, the employer cannot
on the basis of the same fact impose a contractual penalty and claim damages
as well.
- 2. Each contractual provision in conflict with the second sentence of
paragraph 1 is null and void.
Article 7:652 Probationary period
- 1. Where parties have agreed a probationary period, it shall be equal
for both parties.
- 2. The probationary period must be agreed in writing.
- 3. When entering into an employment agreement for an indefinite term,
a probationary period may be agreed upon for not more than two months.
- 4. When entering into an employment agreement for a fixed term, a probationary
period may be agreed upon for not more than:
a. one month if the agreed duration of the
agreement is less than two years;
b. two months if the agreed duration of the
agreement is two years or more.
- 5. If the end of an employment agreement for a fixed period has not
been set at a calendar date, a probationary period of not more than one
month may be agreed upon.
- 6. It is only possible to derogate to the disadvantage of the employee
from paragraph 4, under point (b) and 5, by Collective Labour Agreement
or by a Regulation made by or on behalf of a public governing body competent
to this end.
- 7. Each contractual provision with the effect that the probationary
period is not the same for both parties or that it is set for a longer
period than two months, and every contractual provision with the effect
that, by entering into a new probationary period, the total duration of
the joint probationary periods exceeds a period of two months, is null
and void.
Article 7:653 Non-competition clause
- 1. A contractual provision between the employer and the employee restricting
the employee's right to work in a certain way after the end of the employment
agreement is only valid if the employer has agreed so in writing with
an adult employee.
- 2. The court may nullify such a contractual provision entirely or partially
on the ground that the employee is unfairly disadvantaged by that provision
in proportion to the interest of the employer that is protected by that
provision.
- 3. When the employer is liable for damages because of the way how the
employment agreement has ended, he cannot derive any rights from a contractual
provision as meant in paragraph 1.
- 4. If a contractual provision as meant in paragraph 1 forms a major
objection for the employee to perform work other than in service of the
employer, the court may at all times order that the employer must pay
a compensation to the employee for the duration of the restriction. The
court determines the amount of this compensation in fairness in view of
the circumstances of the case; it may permit the employer to pay the compensation
in instalments to be set by court. When the employee is liable for damages
because of the way how the employment agreement has ended, then the employer
cannot be charged with the before meant compensation.
Section 7.10.6 Particular obligations
for the employer
Article 7:654 Costs of making a written employment
agreement
- 1. When an employment agreement is entered into or modified in writing,
the costs of making the written contract or the written modification and
other additional costs are for account of the employer.
- 2. The employer is obliged to hand over to the employee, free of any
charge, a copy of the complete and signed written contract or written
modification.
Article 7:655 Duty of the employer to inform the employee
of specific data
- 1. The employer is obliged to supply the
employee a written or electronic declaration mentioning at least the following
data:
a. the name and domicile of both parties;
b. the place or places where the work has to
be performed;
c. the position of the employee or the kind
of work to be performed by him;
d. the commencing date as of which he will
effectively be in service of the employer;
e. if the employment agreement is entered into
for a fixed term: the duration of the agreement;
f. the entitlement to holiday or the way in
which this entitlement can be determined;
g. the duration of the term of notice of termination
for both parties or the way in which the duration of these terms of notice
can be determined;
h. the amount of wages and the period in which
these wages are paid out and, when the amount of wages depends on the
production of the performed work, the offered quantity of work per day
or per week, the amount of wages for each piece produced and the time
which is reasonably involved with making such a piece;
i. the usual working hours per day or per week;
j. whether or not the employee will take part
in a pension scheme;
k. if the employee will be working outside
the Netherlands for a longer period than one month: the duration of that
period, the relevant accommodation, the application of Dutch social insurance
laws or the specification of the authorities responsible for the implementation
of these laws, the currency in which the wages will be paid, the compensations
to which the employee is entitled and the way in which the homeward journey
is regulated;
l. the relevant collective Labour Agreement
or Regulation by or on behalf of a public governing body competent to
this end;
m. whether the employment agreement is a (temporary)
employment agency contract (secondment agreement) as meant in Article
7:690.
- 2. As far as the data meant in paragraph
1, under point (a) up to and including point (j), are mentioned in the
employment agreement that has been entered into in writing or in a payslip
as referred to in Article 7:626, a written declaration as meant in paragraph
1 may be omitted. As far as the data meant in paragraph 1, under point
(f) up to and including point (i), are mentioned in the relevant Collective
Labour Agreement or Regulation by or on behalf of a public governing body
competent to this end, it is sufficient that the written declaration refers
to this Collective Labour Agreement or Regulation.
- 3. The employer supplies the declaration
within one month after the employee has actually started to work or, if
the employment agreement ends before this moment, at the latest at the
end of the employment agreement. The data meant in paragraph 1, under
(k), must be supplied before the employee leaves. The declaration is signed
by the employer. Where the declaration is provided electronically, it
must contain an electronic signature which meets the requirements of Article
3:15a, paragraph 2. A change of data must be notified to the employee
in writing or electronically within one month after the change involved
has become effective, unless the change results from a modification of
law or the modification of a Collective Labour Agreement or a Regulation
by or on behalf of a public governing body competent to this end.
- 4. Where it concerns an employment agreement
under which the employee in general works for less than four days exclusively
or nearly exclusively in the household of an employer who is a natural
person himself, the employer only is obliged to supply the data meant
in paragraph 1 when the employee has requested so.
- 5. The employer who refuses to supply the
written declaration or who has recorded incorrect data on it, is towards
the employee liable for the damage caused as a result.
- 6. Paragraph 1 up to and including 5 apply
accordingly to a framework contract regulating in advance the employment
conditions of one or more employment agreements to be concluded with regard
to work on call, and to other contracts than employment agreements, whether
or not followed by other similar agreements, under which one of the parties
has engaged himself to perform work for the other party in return for
remuneration, unless the person who has to perform the work has entered
into the agreement in the course of his professional practice or business.
Also Article 7:654 shall apply accordingly to agreements as meant in the
present paragraph.
- 7. If paragraph 6 is applicable, the declaration
referred to in paragraph 1 mentions as well which kind of agreement has
been concluded.
- 8. The employer provides the electronic declaration
in such a way that it can be saved by the employee and shall remain accessible
to him for later inspection.
- 9. A declaration may only be provided electronically
with the explicit consent of the employee.
- 10. Any contractual provision in conflict
with the present Article is null and void.
Article 7:656 Employee testimonial
- 1. At the end of the employment agreement the employer is obliged, upon
request, to hand over a testimonial to the employee.
- 2. This testimonial mentions:
a. the kind of work that the employee has performed
and his working hours per day or per week;
b. the commencing date and the ending date
of the employment service;
c. a declaration about the way in which the
employee has complied with his obligations (performed his work);
d. a declaration about the way in which the
employment agreement has ended;
e. if the employment agreement has been terminated
by the employer: the reason for its termination.
- 3. The information referred to in paragraph 2, under point (c), (d)
and (e), may only be mentioned in the testimonial when the employee has
requested so.
- 4. If the employment agreement has been terminated by the employee and,
as a result, he has become liable for damages, then the employer is entitled
to mention this in the testimonial.
- 5. The employer who refuses to give the requested testimonial, who acts
in conflict with a request as meant in paragraph 3, who deliberately or
because of negligence mentions incorrect information in the testimonial
or who marks the testimonial or arranges it in a specific way in order
to make a statement about the employee that is not in line with the meaning
of the words used in testimonial, is liable for the damage caused as a
result, not only towards the employee but also towards third parties who
have suffered damage as a result.
- 6. It is not possible to derogate to the disadvantage of the employee
from the present Article.
Article 7:657 Duty to inform the employee of a job
vacancy
- 1. Employees working under an employment agreement for a fixed term
must be informed by the employer, in time and concretely, of a job opening
for a position which is to be fulfilled under an employment agreement
for an indefinite term.
- 2. The provision in paragraph 1 does not apply to a (temporary) employment
agency (secondment agreement) contract as meant in Article 7:690.
Article 7:658 Care duty of the employer
- 1. The employer must arrange and maintain the spaces, rooms, machines
and tools in which or with which work is performed under his responsibility
and give instructions and take safety measures as is reasonably necessary
to prevent that the employee suffers damage during the performance of
his work.
- 2. The employer is towards the employee liable for damage which the
employee has suffered from activities performed in the course of his work,
unless he shows that he has complied with the obligations mentioned in
paragraph 1 or that the damage to a substantial degree results from an
intentional act or omission or from wilful recklessness on the part of
the employee.
- 3. It is not possible to derogate to the disadvantage of the employee
from paragraph 1 and 2 and from the statutory provisions of Title 6.3
of the Civil Code with regard to the liability of an employer.
- 4. A person who in the course of his professional practice or business
enables other persons, with whom he has not concluded an employment agreement,
to perform work, is liable towards these other persons in accordance with
the previous paragraphs of the present Article for damage which these
other persons have suffered from activities performed in the course of
that work. The Subdistrict Court has jurisdiction to give a judgment on
legal claims as referred to in the first sentence of this paragraph.
Article 7:658a Reintegration to work of sick employees
- 1. Where an employee is unable to perform the contracted work due to
sickness, the employer promotes the participation of the employee in the
working activities of the employer's enterprise or organisation. If it
is certain that the employer is no longer able to perform the work for
which he was contracted and that there is no suitable alternative work
available for him in the employer's enterprise or organisation, then the
employer promotes, for the period during which he is obliged to continue
the payment of the employee's wages pursuant to Article 7:629, Article
71a, ninth paragraph, of the Invalidity Insurance Act or Article 25, ninth
paragraph, of the Act on Work and Income in proportion to Labour Capacity,
the participation of the employee in work that is suitable for him in
another enterprise or organisation.
- 2. In order to comply with his duty meant in paragraph 1, the employer
must as soon as possible take such measures and give such instructions
as is reasonably necessary to enable the employer, who is unable to perform
the contracted work due to sickness, to perform his own or suitable alternative
work.
- 3. In order to comply with his duty meant in paragraph 1, the employer
makes, in agreement with the employee, an action plan to accomplish the
reintegration to work in conformity with Article 71a, second paragraph,
of the Invalidity Insurance Act and Article 25, second paragraph, of the
Act on Work and Income in proportion to Labour Capacity. The action plan
is regularly evaluated with collaboration of the employee and will be,
if necessary, adjusted from time to time
- 4. By ‘suitable alternative work’ as meant in paragraph
1 and 2 is understood all work that is appropriate in view of the strength
(potency) and skills of the employee, unless it cannot be expected of
the employee to accept this work for reasons of a physical, mental or
social nature.
- 5. The employer and the person or organisation who assists him by virtue
of Article 13, 14 and 14a of the Working Conditions Act, provides a reintegration
agency as meant in Article 1 of the Act on Work and Income in proportion
to Labour Capacity, with information as far as this is necessary for the
implementation of the operations assigned by the employer to this agency
as well as the tax and social insurance number of the employee whose participation
in work is promoted by that reintegration agency. The reintegration agency
shall process this information only insofar this is necessary for the
implementation of these operations and it shall only use the tax and social
insurance number of the employee for this purpose.
- 6. The present Article applies accordingly to the person bearing the
risks as meant in Article 1, first paragraph, component h, of the Sickness
Benefits Act, and the persons meant in Article 29, second paragraph, components
a, b and c, of that Act, who have most recently concluded an employment
agreement with the person bearing the before mentioned risks during the
period that the latter was obliged to pay a sickness benefit to those
persons.
Article 7:658b Second opinion of an impartial expert
- 1. The court rejects a legal claim of the employee to force the employer
to comply with his obligation meant in Article 7:658a paragraph 2, if
this claim is not accompanied by a declaration of an expert who has been
appointed by the Social Security Agency, mentioned in Chapter 5 of the
Structure Social Security Agency for Work and Income Act, with regard
to the compliance of this obligation by the employer.
- 2. Paragraph 1 does not apply if the compliance is not disputed or if
it reasonably cannot be expected that employee submits an expert's declaration.
- 3. The expert who has accepted his appointment, is obliged to perform
the examination impartially and to the best knowledge and understanding.
- 4. An expert who is a medical doctor may gather information about the
employee, important for his examination, from the treating physician or
physicians. They will provide the requested information as far as the
personal life and privacy of the employee will not be harmed disproportionally
as a result.
- 5. The court may, upon the request of one of the parties or of its own
motion, order the expert to clarify or extend his declaration in writing
or verbally.
- 6. With regard to a legal claim as meant in paragraph 1, the employee
can only be ordered to pay the employer's costs of proceedings mentioned
in Article 237 of the Code of Civil Procedure in case of obviously unreasonable
use of procedural law.
- 7. It is possible to stipulate by Collective Labour Agreement or by
a Regulation made by or on behalf of a public governing body that the
expert referred to in paragraph 1 may be appointed by another institute
or person than the Social Security Agency, mentioned in Chapter 5 of the
Structure Social Security Agency for Work and Income Act.
Section 7.10.7 Particular obligations
for the employee
Article 7:659 Obligation to perform the work personally
- 1. The employee is obliged to perform the contracted work himself; in
performing his work he can only be replaced by someone else with approval
of the employer.
- 2. The right of action of the employer against the employee to perform
the contracted work cannot be added with a claim to impose a judicial
penalty payment or a detention if the employee still does not comply with
his obligation.
Article 7:660 Employer's right of instruction
The employee must observe the work instructions and the instructions intending
to maintain good order in the enterprise or organisation of the employer,
given by or on behalf of the employer within the limits of the employment
agreement and law to the employee, either individually or as a part of
a group of employees.
Article 7:660a Duties of a sick employee
The employee who is unable to perform the contracted work due to sickness,
is obliged:
a. to comply with reasonable instructions of
the employer or of an expert appointed to this end by the employer and
to cooperate in the implementation of measures as referred to in Article
7:658a, paragraph 2, taken by the employer or an expert appointed to this
end by the employer;
b. to collaborate in making, evaluating and
adjusting an action plan as referred to in Article 7:658a, paragraph 3;
c. to perform suitable alternative work as
referred to in Article 7:658a, paragraph 4, which has been offered to
him by his employer.
Article 7:661 Liability of the employee for damage
inflicted on the employer or a third person
- 1. The employee who in the performance of the employment agreement or
in the course of his work inflicts damage to the employer or a third person
towards whom the employer is liable for damages, is not towards the employer
liable for this damage, unless the damage results from an intentional
act or omission or from wilful recklessness on the part of the employee.
A different effect than the one in the previous sentence may result from
the particular circumstances of the case, having regard to the nature
of the agreement.
- 2. It is only possible to derogate to the disadvantage of the employee
from paragraph 1 and from Article 6:170 paragraph 3 by written agreement
and only as far as the employee is insured for the caused damage.
Section 7.10.8 Rights of the employee
at a transition of the enterprise
Article 7:662 Definitions
- 1. Contrary to Article 7:615, the present Section (Section 7.10.8) also
applies to employees performing work in an enterprise belonging to the
State, a Province, a Municipality, a Water Authority or another public
body.
- 2. For the purpose of this Section (Section 7.10.8):
a. 'transition' means a transition (passage)
as a result of an agreement, a merger or a split up of an economic entity
preserving its identity at it;
b. 'economic entity' means the total of organised
resources and means intended to carry out, whether or not as its main
purpose, an economic activity.
- 3. For the purpose of this Section (Section 7.10.8), a business establishment
or a part of an enterprise is regarded as an enterprise.
Article 7:663 Safeguarding of employees' rights
In the event of a transition of an enterprise the employer's rights and
obligations arising from an employment agreement related to that enterprise
and existing between him and the employees working in that enterprise
on the date of the transition, will pass by operation of law to the party
acquiring the enterprise. Nevertheless, for at least one year after the
transition the former employer will remain, in addition to the acquiring
party, joint and several responsible (liable) for the compliance with
the obligations derived from the before mentioned employment agreement
as far as these obligations already had come to existence before the transition
of the enterprise.
Article 7:664 Pension entitlements
- 1. Article 7:663, first sentence, does not apply to the employer's rights
and obligations arisen from a pension agreement as meant in Article 1
of the Pension Act 2007 [Pensioenwet 2007] if:
a. the acquiring party has made the same offer
to the employee, meant in Article 7:663, to enter into a pension agreement
as the offer which he has made prior tot the transition of the enterprise
to his own employees;
b. the acquiring party on the basis of Article
2 of the Mandatory Participation in a Sectoral Pension Fund Act 2000 [Wet
verplichte deelneming in een bedrijfstakpensioenfonds 2000] is obliged
to take part in a sectorial pension fund and the employee meant in Article
7:663 will take part in that fund;
c. a Collective Labour Agreement or a Regulation
by or on behalf of a public governing body competent to this end, derogates
from the pension agreement meant in the openings words of this paragraph.
- 2. Paragraph 1 does not apply if the employee, meant in Article 7:663,
prior to the transition of the enterprise, already was obliged on the
basis of Article 2 of the Mandatory Participation in a Sectoral Pension
Fund Act 2000 [Wet verplichte deelneming in een bedrijfstakpensioenfonds
2000] to take part in a sectorial pension fund and the same obligation
continues to apply after the transition.
- 3. Article 7:663, first sentence, does not apply to the employer's rights
and obligations arising from a savings scheme as referred to in Article
3, first paragraph, of the Pensions and Saving Funds Act in the meaning
of that Article on the day prior to the day on which the Pension Act 2007
entered into force, if the acquiring party admits the employee, meant
in Article 7:663, to a savings scheme that already was effective on behalf
of his own employees before the transition of the enterprise.
Article 7:665 Transition, change of circumstances
and rescission of the employment agreement
If the transition of the enterprise leads to a change of circumstances
to the disadvantage of the employee and, as a result of this change, the
employment agreement has been rescinded on the ground of Article 7:685,
then for the purpose of that Article the employment agreement is regarded
to be rescinded due to a reason which is for account of the employer.
Article 7:665a Duty to provide information
If in the enterprise no Works Council, nor an Employee Representing Body
has been established by virtue of Article 35c paragraph1 or Article 35d
paragraph 1 of the Works Councils Act, ten the employer must inform the
employees involved at the transition of the enterprise of:
a. the intended decision about the transition
of the enterprise;
b. the planned date of the transition of the
enterprise;
c. the reason for the transition of the enterprise;
d. the legal, economic, and social implications
of the transition of the enterprise for the employees, and;
e. the measures envisaged in relation to the
employees.
Article 7:666 Bankruptcy and the crew of a sea ship
- 1. Articles 7:662 up to and including 7:665
and 7:670, paragraph 8, do not apply to the transition of an enterprise
if the employer is bankrupt and the enterprise belongs to the bankrupt
estate, and neither, where the employer is a bank within the meaning of
Article 1:1 of the Financial Supervision Act or an insurer within the
meaning of that Article, when an emergency regulation as meant in Article 3.5.5
of that Act has been proclaimed in respect of the employer, and the District
Court has given an authorization as referred to in Article 3:163, paragraph
1, first sentence and under (b) of that Act or an authorization as referred
to in Article 3:163m, paragraph 1, first sentence and under (c) of that
Act, and the liquidators have proceeded to a winding up (liquidation).
- 2. The present Section (Section 7.8.10)
does not apply to the crew of a seagoing ship.
Section 7.10.9. End of an employment
agreement
Article 7:667 Ending of an employment agreement by
operation of law or because of a termination
- 1. An employment agreement ends by operation of law when the period
indicated by the
agreement, by law or by common practice (usage) has expired.
- 2. A prior notice of termination is required:
a. if this has been stipulated in a written
agreement;
b. if such a notice is required by law or common
practice (usage) and there is no written agreement, where this is permitted,
that stipulates otherwise.
- 3. An employment agreement as referred to in paragraph 1 may only be
terminated before the fixed term has fully expired if the right to do
so has been agreed upon in writing and has been granted to each of the
parties.
- 4. If an employment agreement for an indefinite term, that has been
ended in another way than by a legally valid notice of termination or
a rescission by the court, has been continued once or several times by
an employment agreement for a fixed term, with intervals of no more than
three months, then, in derogation from paragraph 1, a prior notice of
termination is necessary in order to end the last agreement for a fixed
term.
- 5. A continued employment agreement as referred to in paragraph 4 exists
as well if the same employee has been successively employed by several
employers who may reasonably be regarded to be each other’s successors
in view of the work that has been performed by the employee.
- 6. A prior notice of termination is required for the termination of
an employment agreement for an indefinite term.
- 7. Any contractual provision which would automatically end the employment
agreement when the employee enters into a marriage or a registered partnership
is null and void.
- 8. Any contractual provision which would automatically end the employment
agreement when the employee becomes pregnant or gives birth to a child
is null and void.
Article 7:668 Silent (tacit) continuation of a fixed-term
employment agreement
- 1. Where an employment agreement after the expiration of a fixed term
as meant in Article 7:667, paragraph 1, actually is continued by parties,
who have not made any objections against this, parties will be regarded
to have entered into a new employment agreement under the same contractual
provisions and conditions and for the same fixed term as the previous
employment agreement, though with a duration of at the most one year.
- 2. The same applies to situations in which a termination is necessary,
but the employment agreement is not terminated or not terminated with
observance of the relevant term of notice and parties have not consciously
regulated the effects of a continuation of the employment agreement.
Article 7:668a A chain of fixed-term employment agreements
- 1. As from the day that between the same parties:
a. two or more employment agreements for a
fixed term have succeeded one another at intervals of not more than three
months and these employment agreements jointly have covered a total period
of 36 months, these intervals included, the last employment agreement
for a fixed term is deemed to be an employment agreement that has been
entered into for an indefinite term;
b. more than three employment agreements for
a fixed term have succeeded one another at intervals of not more than
three months, the last employment agreement for a fixed term is deemed
to be an employment agreement that has been entered into for an indefinite
term.
- 2. Paragraph 1 applies accordingly to employment agreements for a fixed
term succeeding one another between an employee and different employers
who reasonably must be considered as each other's successor with regard
to the work that has been performed by this employee.
- 3. Paragraph 1, under point (a), does not
apply to an employment agreement that has been entered into for not more
than three months and that has been concluded immediately after the ending
of an employment agreement for a period of 36 months or more between the
same parties.
- 4. The duration of the term of notice of termination is calculated as
from the day that the first employment agreement referred to in paragraph
1, under point (a) or (b), was entered into.
- 5. It is only possible to derogate to the disadvantage of the employee
from the previous paragraphs by Collective Labour Agreement or by a Regulation
by or on behalf of a public governing body competent to this end.
Article 7:669 Notification of the reason of termination
The party who terminates the employment agreement must notify the other
party, upon his request, in writing of the reason for termination.
Article 7:670 Termination ban
- 1. An employer may not terminate the employment agreement during the
time that the employee is unable to perform his work due to sickness,
unless this inability:
a. has lasted for at least two years, or;
b. has started after the Social Security Agency
already had received the employer's request for permission to terminate
the employment agreement as meant in Article 6 of the Extraordinary Labour
Relations Decree 1945.
In calculating the period, meant under point (a), periods, prior to maternity
leave, during which the employee has been unable to perform work due to
pregnancy and periods of working inability during a maternity or birth
leave as meant Article 3:1 paragraph 2 and 3 of the Work and Care Act
are not taken into account. Additionally, periods during which the employee
has been unable to perform work for other reasons than those mentioned
in the previous sentence are added up together if they have succeeded
one another with intervals of not more than four weeks or if they directly
preceded and connected to a period in which the employee enjoyed maternity
or birth leave in accordance with Article 3:1 paragraph 2 and 3 of the
Work and Care Act, unless the working inability reasonably cannot be considered
to result from the same cause.
- 2. An employer may not terminate the employment agreement with an employee
during her pregnancy. The employer may ask for a declaration of a doctor
or midwife to get confirmation of the pregnancy. Additionally, an employer
may not terminate the employment agreement with an employee during the
period in which she enjoys birth leave as meant in Article 3:1 paragraph
3 of the Work and Care Act and, after resumption of work, during the period
of six weeks immediately following that period of birth leave or immediately
following a period in which the employee has been unable to perform work
as a result of childbirth or as a result of her pregnancy preceding the
delivery of the child and which period immediately follows the period
of birth leave.
- 3. An employer may not terminate the employment agreement during the
period that the employee is prevented from performing the contracted work
because he has been called up as conscript for military service or alternative
service.
- 4. An employer may not terminate the employment agreement with the employee
who is a member:
1°. of a Works Council, a Central Works Council, a Group Works Council,
a permanent committee or subcommittee of such Works Councils or of an
Employee Representing Body;
2°. of a particular negotiation group or a European Works Council
as meant in the European Works Councils Act or who, pursuant to that Act,
acts as a representative in providing information to employees and consulting
them;
3°. of a particular negotiation group or SE-Works Council ['SE' is
'Societas Europaea' or European Company] or who is a member, in his capacity
of employee representative, of the supervisory or managing board of the
SE as referred to in Chapter 1 of the Act with regard to the Involvement
of Employees at European Legal Persons or who, pursuant to that Act, acts
as a representative in providing information to employees and consulting
them;
4°. of a particular negotiation group or SCE-Works Council or who
is a member, in his capacity of employee representative, of the supervisory
or managing board of the SCE as referred to in Chapter 2 of the Act with
regard to the Position of Employees at European Legal Persons or or who,
pursuant to Chapter 2 that Act, acts as a representative in providing
information to employees and consulting them;
If the employer has appointed a secretary for the Works Council or the
Employee Representing Body, the first sentence applies accordingly to
that secretary. If the employer has appointed a secretary for the Works
Council, the first sentence of this paragraph applies accordingly to that
secretary.
- 5. An employer may not terminate the employment agreement because of
the membership of the employee of an association of employees which, by
virtue of its articles of association, has the objective to protect the
interests of the members as an employee or because of performing activities
for or participating in such an association, unless those activities were
performed in the employee's working hours without the employer's permission.
- 6. An employer may not terminate the employment agreement with an employee
on the
ground that he has attended meetings as referred to in Article 7:643 if
the employee has permission to do so. The same applies if parties have
not come to terms over such leave as long as the court has not decided
on the matter.
- 7. An employer may not terminate the employment agreement on the ground
that the employee has exercised his right to adoption leave or to a leave
to take in a foster child as meant in Article 3:2 of the Work and Care
Act, or his right to short-term or long-term care-related leave as meant
in Chapter 5 of the Work and Care Act or his right to parental leave as
meant in Chapter 6 of the Work and Care Act.
- 8. An employer may not terminate the employment agreements with the
employees working in his enterprise or organisation on the ground of a
transition of this enterprise or organisation as meant in Article 7:662.
paragraph 2. under point (a).
- 9. An employer may not terminate an employment agreement on the ground
that the employee does not consent in working on Sundays as meant in Article
5:6, paragraph 2, second sentence or paragraph 4, second sentence, of
the Working Hours Act.
- 10. The period of two years, meant in paragraph
1 under point (a), is extended:
a. with the duration of the delay if the application,
meant in Article 64, first paragraph of the Work and Income in proportion
to Labour Capacity Act, has been made later than prescribed in or under
that Article;
b. with the duration of the lengthening of
the waiting period, meant in Article 19, first paragraph, of the Invalidity
Insurance Act, if that waiting period is extended pursuant to the seventh
paragraph of that Article; and;
c. with the duration of the period determined
by the Social Security Agency pursuant to Article 24, first paragraph,
or Article 25, ninth paragraph, of the Work and Income in proportion to
Labour Capacity Act, or pursuant to Article 71a, ninth paragraph, of the
Invalidity Insurance Act.
- 11. For the purpose of paragraph 4 of the
present Article and of Article 7:670a, paragraph 1, an 'SE-Works Council'
means as well: the body representing the employees of an SE [European
Company] that has its official seat in another Member State and that has
been incorporated under the provisions of the national law of that Member
State in transposition of Directive no. 2001/86 of the Council of the
European Union of 8 October 2001 supplementing the Statute for a European
company with regard to the involvement of employees (OJ L 294).
- 12. For the purpose of paragraph 4 of the
present Article and of Article 7:670a, paragraph 1, an 'SCE-Works Council'
means as well: the body representing the employees of an SCE [European
Cooperative Society] that has its official seat in another Member State
and that has been incorporated under the provisions of the national law
of that Member State in transposition of Directive no. 2003/72/EG of the
Council of the European Union of 22 July 2003 supplementing the Statute
for a European Cooperative Society with regard to the involvement of employees
(OJ L 207).
- 13. It is only possible to derogate from
paragraph 1, first sentence, and paragraph 3 of the present Article by
Collective Labour Agreement or by a Regulation by or on behalf of a public
governing body competent to this end.
Article 7:670a Required authorisation of the Subdistrict
Court for termination
- 1. Without the preliminary authorisation of the Subdistrict Court, an
employer may not terminate the employment agreement with an employee who:
a. is put on a list of candidates to become
a member of the Works Council or an Employment Representing Body or who
was, less than two years ago, a member of a Works Council, a Central Works
Council, a Group Works Council or of a committee of one of these Works
Councils or of an Employee Representing Body or of a particular negotiation
group or a European Works Council, an SE-Works Council or an SCE-Works
Council as meant in the European Works Council Act or as meant in Chapter
1 or 2 of the Act with regard to the Involvement of Employees at European
Legal Persons, respectively, or who acted, less than two years ago, pursuant
to one of these Acts as a representative in providing information to employees
and consulting them
b. is a member of a preparing committee of
a Works Council, a Central Works Council or a Group Works Council;
c. is employed as an expert employee meant
in Article 13, first and second paragraph, of the Working Conditions Act,
or as an expert meant in Article 14, first paragraph, of the Working Conditions
Act;
d. is employed as an official for the protection
of data as meant in Article 62 of the Persons Data Protection Act.
- 2. The authorisation of the Subdistrict Court is requested by petition
(application). The Subdistrict Court will grant its authorization only
if the employer has made plausible that the termination of the employment
agreement is not related to a situation or position as referred to in
paragraph 1. There is no appeal to a higher court nor an appeal in cassation
open against such a decision of the Subdistrict Court.
Article 7:670b Exemptions to termination bans
- 1. Articles 7:670 and 7:670a do not apply where the employment agreement
is terminated during a probationary period or where it is terminated on
the ground of compelling reasons.
- 2. Paragraph 1 up to and including 9 of Article 7:670 and Article 7:670a
do not apply if the employee agrees in writing with the termination of
his employment agreement or if the employment agreement is terminated
because the enterprise or the part of it where the employee exclusively
or mainly performs his work ends its business activities. Nevertheless,
a termination on the ground that the business activities have ended, cannot
relate to the employment agreement of an employee who, at the moment of
termination, enjoys maternity or birth leave as meant in Article 3:1 the
Work and Care Act.
- 3. Article 7:670, opening words and paragraph 1, under point (a), does
not apply if an employee, who is unable to perform the contracted work
due to sickness, without any sound reason, refuses:
a. to carry out reasonable instructions or
measures issued, either by his employer or by an expert appointed to this
end by his employer, which instructions or measures are intended to enable
him to perform suitable alternative work as meant in Article 7:658a, paragraph
4;
b. to perform suitable alternative work as
meant in Article 7:658a, paragraph 4, offered to him by his employer and
to be performed on behalf of his employer or of a third person appointed
to this end by his employer;
c. to collaborate in making, evaluating or
adjusting an action plan as meant in Article 25, second paragraph, of
Work and Income in proportion to Labour Capacity Act, or Article 71a,
second paragraph, of the Invalidity Insurance Act.
Article 7:671 [repealed on 01-01-1999]
Article 7:672 Term of notice of termination
- 1. A notice of termination takes effect at the end of a month, unless
another termination date has been agreed in writing or has been ordered
by common practice (usage).
- 2. The term of notice of termination to be observed by the employer
is, when the employment agreement on the effective termination date has
lasted:
a. shorter than five years: one month;
b. five years or longer, but shorter than ten
years: two months;
c. ten years or longer, but shorter than fifteen
years: three months;
d. fifteen years or longer: four months.
- 3. The term of notice of termination to be observed by the employee
is one month.
- 4. If the Social Security Agency has granted its permission to terminate
the employment agreement as referred to in Article 6 of the Extraordinary
Labour Relations Decree 1945, then the term of notice to be observed by
the employer is shortened by one month, on the understanding that the
remaining term of notice at all times remains at least one month.
- 5. The term of notice meant in paragraph 2 can only be shortened by
Collective Labour Agreement or by a Regulation by or on behalf of a public
governing body competent to this end. The term of notice can be lengthened
in writing.
- 6. The term of notice to be observed by the employee may be shortened
or lengthened in writing. This term of notice may, however, not be longer
than six months and if it is lengthened the term of notice to be observed
by the employer must always be at least twice (double) as long as that
of the employee.
- 7. It is only possible to derogate by Collective Labour Agreement or
by a Regulation by or on behalf of a public governing body competent to
this end, from the provision in paragraph 4 with regard to the remaining
term of notice of one month as fas as this is done to the disadvantage
of the employee.
- 8. The term of notice meant in paragraph 6, second sentence, to be observed
by the employer when the term of notice for the employee has been lengthened
by written agreement, may be shortened by Collective Labour Agreement
or by a Regulation by or on behalf of a public governing body competent
to this end, provided that it is not shorter than the term of notice to
be observed by the employee.
- 9. In the event that an employment agreement has been restored pursuant
to Article 7:682, the involved employment agreements are, for the purpose
of paragraph 2, considered to be the same uninterrupted employment agreement.
Article 7:673 [repealed on 01-01-1999]
Article 7:674 Death of the employee
- 1. The employment agreement ends by operation of law when the employee
dies.
- 2. The employer is nevertheless obliged towards the left behind relatives
of the employee to grant them a benefit equal to the last wages to which
the deceased employee would have been entitled over the period as from
the day after his death up to and including one month after the day of
his death.
- 3. For the purpose of the present Article, a 'left behind relative'
means the longest living spouse or registered partner of the employee
with whom he actually lived in the same residence or the life companion
of the employee with whom he cohabited unmarried, or when none of these
persons is present, the minor children of the employee with whom he stands
in a familial relationship, and when such children are not present either,
the person with whom the employee formed a joint household and whose costs
of living he bore for the greater part. An unmarried cohabitation as meant
in the first sentence exists when two unmarried persons, not being blood
relatives to the first degree, form a joint household. A joint household
as meant in the second sentence exists when the involved persons have
their main residence in the same house and they provide for each other
by means of making a contribution in the costs of living or in another
way.
- 4. The benefit payable at the employee's death, meant in paragraph 2,
may be reduced by the amount of the benefit to which the left behind relatives
are entitled with regard to the death of the employee pursuant to a legally
required Sickness or Invalidity Insurance and pursuant to the Social Security
Supplements Act.
- 5. Paragraph 2 does not apply if the employee immediately prior to his
death under application of Article 7:629, paragraph 3, had no right to
wages as meant in Article 7:629, paragraph 1, or if the left behind relatives,
as a consequence of a fault of the employee, are not entitled to a benefit
pursuant to a legally required Sickness or Invalidity Insurance.
- 6. It is not possible to derogate from the present Article to the disadvantage
of the left behind relatives of the deceased employee.
Article 7:675 Death of the employer
An employment agreement does not end when the employer dies, unless this
agreement itself provides otherwise. Nonetheless, both, the heirs of the
employer and the employee, are entitled to terminate an employment agreement
that has been entered into for a fixed term, with due observance of Article
7:670, 7:670a and 7:672, as if it was entered into for an indefinite term.
When the estate of the deceased employer is apportioned pursuant to Article
4:13 of the Civil Code [intestate succession], the right of termination
of the heirs meant in the previous sentence belongs to the employer’s
spouse or registered partner.
Article 7:676 Termination during a probationary period
- 1. If a probationary period has been stipulated, each of the parties
is entitled, as long as the relevant period has not expired, to terminate
the employment agreement with immediate effect.
- 2. Articles 7:681 and 7:682 do not apply to such a termination.
Article 7:677 Liability due to an irregular termination
- 1. Each of the parties is entitled to terminate the employment agreement
with immediate effect as a consequence of an urgent reason which at the
same time is announced to the opposite party. A party who terminates the
employment agreement without an urgent reason or without a simultaneous
notification of this urgent reason to the opposite party, is liable for
damages.
- 2. A party who terminates the employment agreement at an effective termination
date prior to the date which is relevant between parties in view of their
legal relationship, is liable for damages.
- 3. A party is also liable for damages when he has wilfully or blamefully
given the opposite party an urgent reason to terminate the employment
agreement with immediate effect and that opposite party has used this
urgent reason to terminate the employment agreement or the court has dissolved
the employment agreement on that ground pursuant to Article 7:685.
- 4. In the event that one of the parties is liable for damages due to
an irregular termination, the opposite party may, at his choice, claim
a fixed compensation for damages as provided for by Article 7:680a or
a full compensation for the damage actually suffered.
- 5. The fact that an employer has not observed the provisions of Article
7:670, paragraph 1 up to and including 9, or of Article 7:670, does not
make him liable for damages. In such events the employee may, within two
months after the effective termination date, nullify the voidable termination.
This nullification is effectuated by notifying the employer that the relevant
ground of voidability is invoked. Article 3:55 of the Civil Code does
not apply.
Article 7:678 Urgent reasons for the employer to terminate
the employment agreement immediately
- 1. An urgent reason for the employer in the meaning of Article 7:677,
paragraph 1, consists of such acts, characteristics or behaviour on the
part of the employee, having the result that the employer reasonably cannot
be expected to continue the employment agreement.
- 2. An urgent reason may, among others, exist:
a. when the employee has mislead the employer
at the conclusion of the employment agreement by showing false or forged
testimonials or by deliberately providing false information about the
way in which his previous employment ended;
b. when the employee seriously seems to lack
the competence or the capability to perform the work to which he has engaged
himself;
c. when the employee, despite warning, takes
to drunkenness or other dissipated behaviour;
d. when the employee makes himself guilty of
theft, embezzlement, deceit, fraud or other indictable offences as a result
of which he becomes unworthy of the employer's trust;
e. when the employee batters, crudely insults
or seriously threatens the employer, his family members or other employees;
f. when the employee tempts or tries to tempt
the employer, his family members or other employees to perform or participate
in actions contradictory to law or good morals;
g. when the employee deliberately, or despite
warning, recklessly damages the property of the employer or exposes it
to serious danger;
h. when the employee deliberately, or despite
warning, recklessly exposes himself or others to serious danger;
i. when the employee makes public characteristics
regarding the household or enterprise of the employer which he was expected
to keep confidential;
j. when the employee persistently refuses to
comply with reasonable instructions or orders given by or on behalf of
the employer;
k. when the employee crudely neglects the obligations
imposed on him by the employment agreement;
l. when the employee deliberately or because
of reckless behaviour becomes or remains unable to perform the contracted
work.
- 3. Contractual provisions leaving the decision whether an urgent reason
in the meaning of Article 7:677, paragraph 1, exists to the discretion
of the employer, are null and void.
Article 7:679 Urgent reason for the employee to terminate
the employment agreement immediately
- 1. An urgent reason for the employee in the meaning of Article 7:677,
paragraph 1, consists of such circumstances which result in a situation
in which the employee reasonably cannot be expected to continue the employment
agreement.
- 2. An urgent reason may, among others, exist:
a. when the employer batters the employee,
his family members or residents, crudely insults or seriously threatens
them or tolerates that such actions are committed by one of the employer’s
family members or subordinates;
b. when the employer temps or tries to tempt
the employee or his family members to act contradictory to law or good
morals or when the employer tolerates that such temptations or attempts
of temptation are committed by one of the employer’s family members
or subordinates;
c. when the employer does not pay the wages
at the moment determined for this purpose;
d. when the employer, in the event that lodging
and boarding have been agreed, cannot provide these in a proper manner
e. when the employer does not provide the employee,
whose wages are dependent on what has been produced as outcome of the
performed work, with sufficient work;
f. when the employer does not, or not in the
proper way, provide the employee, whose wages are dependent on what has
been produced as outcome of the performed work, with the required assistance;
g. when the employer in another way grossly
neglects the obligations imposed on him by the employment agreement;
h. when the employer, without the nature of
the employment demanding so, orders the employee, notwithstanding his
refusal, to perform work in the enterprise of another employer;
i. when the continuation of the employment
would subject the employee to serious dangers for his life, health, morality
or good name, which were not obvious at the time of the conclusion of
the employment agreement;
j. when the employee, due to sickness or another
reason for which he is not to blame, is no longer in the position to perform
the required work;
- 3. Contractual conditions leaving the decision whether an urgent reason
in the meaning of Article 7:677, paragraph 1, exists to the discretion
of the employee, are null and void.
Article 7:680 Fixed compensation for damages
- 1. The fixed compensation for damages meant in Article 7:677, paragraph
4, equals the amount in money of the wages to which the employee would
have been entitled for the time during which the employment agreement
would have remained effective if there had been a regular termination.
- 2. When the employee's wages are, either entirely or partially, not
fixed for a specific period of time, the standard of Article 7:618 will
apply in determining the amount of the wages.
- 3. Each contractual provision making the employee entitled to a fixed
compensation for damages to a lower amount than to which he is entitled
pursuant to the present Article is null and void.
- 4. By written agreement the entitlement of the employee to a fixed compensation
for damages may be set at a higher amount.
- 5. The court is authorised to adjust the fixed compensation for damages
to a lower amount if it things it is excessive in view of the circumstances
of the case, yet not to a lower amount than the wages of the employee
fixed in money over the term of notice to be observed by the employer
as referred to in Article 7:672, and never to a lower amount than the
employee's wages fixed in money for a period of three months.
- 6. Where the fixed compensation for damages for which the employee is
liable exceeds the amount of his wages fixed in money for a period of
one month or where the fixed compensation for which the employer is liable
exceeds the amount of the employee's wages fixed in money for a period
of three months, the court may allow the fixed compensation to be paid
in instalments to be set by the court.
- 7. The indebted (due) amount of the fixed compensation for damages is
subject to statutory interest, to be calculated as of the day that the
employment agreement has ended.
Article 7:680a Moderation of a legal claim for the
payment of wages
A legal claim for the payment of wages based on the nullification of a
voidable termination of the employment agreement may be moderated by the
court if its awarding would in the given circumstances lead to an unacceptable
result, yet it may not be reduced to less than the employee's wages fixed
in money over the relevant term of notice to be observed pursuant to Article
7:672, and in any event not to less than the employee's wages fixed in
money for a period of three months.
Article 7:681 Obviously unreasonable termination
- 1. The court may grant a party a compensation for damages if the other
party, whether or not under observance of the relevant statutory provisions
for termination, has terminated the employment agreement in an obviously
unreasonable manner.
- 2. A termination of the employment agreement by the employer shall,
among others, be considered obviously unreasonable:
a. when the employment agreement was terminated
without notification of reasons or under notification of a pretended or
false reason;
b. when, taking into account the redundancy
arrangements made for the employee and his existing possibilities to find
another proper job, the consequences of the termination are too serious
for him in comparison with the interest of the employer in the termination
of the employment agreement;
c. when the employment agreement was terminated
on the ground that the employee was prevented from performing the contracted
work because he had been called up as conscript for military service or
alternative service as meant in Article 7:670, paragraph 3;
d. when the employment agreement was terminated
contradictory to an applicable number proportion or seniority arrangement
relevant to the economic sector or enterprise by virtue of law or usage,
unless there are important reasons for this deviation;
e. when the employment agreement was terminated
on the single ground that the employee made an appeal to conscientious
objections in order to refuse the performance of the contracted work.
- 3. A termination of the employment agreement by the employee shall,
among others, be considered obviously unreasonable:
a. when the employment agreement was terminated
without notification of reasons or under notification of a pretended or
false reason;
b. when the consequences of the termination
are too serious for the employer in comparison with the interest of the
employee in the termination of employment agreement.
- 4. A contractual provision leaving the decision whether the employment
agreement has been terminated obviously unreasonable in the meaning the
present Article to the discretion of one of the parties, is null and void.
Article 7:682 Court order to restore the employment
agreement
- 1. The court may also order the employer, who is liable for damages
pursuant to Article 7:677 or who has terminated the employment agreement
obviously unreasonable, to restore the employment agreement.
- 2. If the court gives such a judgment it may ascertain at which moment
the employment agreement must be restored and it may also make arrangements
for the legal consequences of the interruption.
- 3. A judgment ordering the restoration of the employment agreement may
determine that the obligation to restore the employment agreement ceases
to exist when the employer pays redemption money to the employee of which
the amount is to be set in the judgment. If in the judgment no redemption
money as alternative for the restoration of the employment agreement has
been determined, the court may, upon the request of the employer, still
determine so later. Such a request suspends the enforcement and execution
of the court's judgment as far as it concerns the obligation to restore
the employment agreement, until the court has given its decision on the
request, on the understanding that the employer in any event remains obliged
to pay the employee's wages during this suspension.
- 4. The court determines in fairness, taking into account the circumstances
of the case, the amount of the redemption money; it may allow the employer
to pay the redemption money in instalments to be set by the court.
- 5. Where the amount of the redemption money, payable because an obligation
to restore the employment agreement has not been observed, has been determined
in another way than by means of a judgment of the court, the court may,
upon the request of the most interested party, change the amount of the
to be paid redemption money into such an amount as it considers reasonable
and fair in view of the circumstances of the case and it may as well allow
the employer to pay the redemption money in instalments to be set by the
court.
Article 7:683 Prescription
- 1. Every right of action based on Article 7:677, paragraph 4, 7:681,
paragraph 1 or 7:682, paragraph 1, becomes prescribed on the expiry of
six months.
- 2. Every right of action of the employee in connection with the nullification
of a voidable termination of the employment agreement based on Article
7:677, paragraph 5, becomes prescribed on the expiry of six months.
Article 7:684 Termination of an employment agreement
with a duration of five years or more
- 1. An employment agreement that has been entered into for a period of
more than five years or for as long as a specific person will live, may
nevertheless be terminated by the employee after the expiration of five
years from the day that it has been concluded, with due observance of
a term of notice of six months.
- 2. It is not possible to derogate to the disadvantage of the employee
from the present Article.
Article 7:685 Dissolution of the employment agreement
by the Subdistrict Court
- 1. Each of the parties is at all times entitled to approach the Subdistrict
Court with a written request to dissolve the employment agreement for
important reasons. Any contractual provision excluding or limiting this
right, is null and void. The Subdistrict Court may only grant the request
if it has assured whether the request is made in connection with the existence
of a termination ban as meant in Articles 7:647, 7:648, 7:670 and 7:670a,
or another prohibition to terminate the employment agreement.
- 2. 'Important reasons' are circumstances which would have produced an
urgent reason as meant in Article 7:677, paragraph 1, if the employment
agreement would have been terminated with immediate effect, and changed
circumstances of such a nature that the employment agreement in fairness
should end at once or after a short while.
- 3. The request has to be made by petition (application) lodged with
the Subdistrict Court having jurisdiction pursuant to Articles 99, 100,
and 107 up to and including 109 of the Code of Civil Procedure.
- 4. The petition (application) mentions the place where the employee
usually performs his work and the name of the opposite party, his domicile
or, when he has no domicile in the Netherlands, the place and address
where he actually lives.
- 5. When the request is closely connected with a matter between the same
parties that already is pending before another court, the Subdistrict
Court may order that it is brought as well before that other court. The
clerk sends a duplicate of this court order as well as the petition and
the remaining documents of the lawsuit for further consideration to the
court to which the case has been referred.
- 6. The request will at the latest come on for trial within four weeks
following the week in which the petition (application) was lodged.
- 7. If the Subdistrict Court awards the request it determines the day
as of which the employment agreement has ended.
- 8. When the Subdistrict Court awards the request on the ground of changed
circumstances, it may, if it thinks this is fair in view of the circumstances
of the case, grant a compensation in money to one of the parties that
has to be paid by the other party; it may order that the compensation
may be paid in instalments to be set by court.
- 9. Before giving the court order which dissolves the employment agreement,
but which imposes as well an obligation for one of the parties to pay
a compensation, the Subdistrict Court will announce its intention to both
parties and set a period within which the applicant is entitled to withdraw
his request. If the applicant indeed withdraws his request, the Subdistrict
Court will only give a decision with regard to the costs of proceedings.
- 10. Paragraph 9 applies accordingly if the
Subdistrict Court intends to dissolve the employment agreement without
granting a compensation as requested by the applicant.
- 11. Against a court order given pursuant
the present Article no appeal to a higher court and no appeal in cassation
are open.
Article 7:686 Rescission of the employment agreement
on the ground of non-performance
The provisions of this Section (Section 7.10.9) do not affect the right
of both parties to rescind the employment agreement on the ground of non-compliance
with the agreement, nor the right to claim damages. A rescission of the
employment agreement, however, can only be effectuated by a decision of
the court.
Section 7.10.10 Particular provisions
for a trade representative
Article 7:687 Definition of a 'trade representative'
A trade representative agreement is an employment agreement under which
one of the parties (‘the trade representative’) has engaged
himself towards the other party (‘the principal’) to provide
intermediate assistance in bringing about contracts between the principal
and third persons and, should this be agreed upon, to conclude these contracts
in the name of the principal, in return for wages to be paid by the principal
that entirely or partially consist of commission.
Article 7:688 Application of various statutory provisions
for intermediary agreements and commercial agency agreements
- 1. Articles 7:426, 7:429, 7:430, paragraph 2 up to and including 4,
7:431, 7:432, 7:433 and 7:434 apply accordingly to a trade representative
agreement.
- 2. It is, with regard to trade representative agreements, not possible
to derogate from Articles 7:426, paragraph 2, 7:429, 7:430, paragraph
2 up to and including 4, 7:431, paragraph 2, and 7:433.
- 3. It is, with regard to trade representative agreements, not possible
to derogate to the disadvantage of the trade representative from Articles
7:432, paragraph 3, and 7:434.
- 4. Only when this is done in writing, it is possible, with regard to
trade representative agreements, to derogate to the disadvantage of the
trade representative from Articles 7:426, paragraph 1, and 7:431, paragraph
1.
Article 7:689 Fixed compensation for damages
Contrary to Article 7:680 paragraph 2, the fixed compensation for damages
as referred to in Article 7:677, paragraph 4, is determined by taking
into account as well the earned commission over the previous period and
all other relevant factors to this point.
Section 7.10.11 Particular provisions
for a secondment agreement
Article 7:690 Definition of 'secondment agreement'
A secondment agreement (or temporary employment agency agreement) is an
employment agreement under which the employer, within the framework of
his business or professional practice, places the employee at the disposal
of a third party in order to perform work under supervision and direction
of that third party by virtue of an agreement for the provision of services
between the third party and the employer.
Article 7:691 Ending of a secondment agreement
- 1. Article 7:668a shall apply only to a secondment agreement once the
employee has performed work for a period of more than 26 weeks.
- 2. In a secondment agreement may be stipulated in writing that such
an agreement will end by operation of law when the third party referred
to in Article 7:690 has requested the employer to end the situation in
which this employee is placed at his disposal for the performance of work.
If a contractual stipulation as meant in the preceding sentence is included
in a secondment agreement, the employee may always terminate the secondment
agreement with immediate effect.
- 3. A contractual stipulation as meant in paragraph 2 shall no longer
have any effect if the employee has performed work for the employer for
more than 26 weeks. On expiry of this period the right of the employee
to terminate the secondment agreement as referred to in paragraph 2 ceases
to exist.
- 4. For the calculation of the periods referred to in paragraphs 1 and
3, successive periods during which work is performed with intervals of
less than one year shall be taken into account as well.
- 5. For the calculation of the periods meant in paragraph 1 and 3, the
periods during which work is performed for different employers who, in
respect of the work performed, must reasonably be considered to be each
other’s successors, shall also be taken into account.
- 6. The present Article does not apply to a secondment agreement whereby
the employer and the third party both form a part of a group as referred
to in Article 2:24b of the Civil Code or whereby one of them is a subsidiary
of the other as referred to in Article 2:24a of the Civil Code.
- 7. It is only possible to derogate to the disadvantage of the employee
from the periods referred to in paragraph 1, 3 and 4 and from paragraph
5 by Collective Labour Agreement or by Regulation made by or on behalf
of a public governing body competent to this end.
Article 7:692 Minimum wage and minimum holiday allowance
for employees working in the Netherlands
- 1. If the work is performed under a secondment agreement in the Netherlands,
then the employer and third party are joint and several liable for the
payment of the applicable minimum wage and applicable minimum holiday
allowance as referred to in Articles 7 and 15 of the Act on Minimum Wage
and Minimum Holiday Allowance, regardless which law is governing the employment
agreement and/or the agreement between the employer and the third party.
- 2. Paragraph 1 does not apply to the third party if, at the time of
the conclusion of the agreement between the employer and this third party,
the employer is certified by an accredited certification body, acknowledged
as such by the Accreditation Council, in accordance with the regulation
of the Minister of Social Affairs and Employment for setting standards
as far as these standards relate to the observance of Articles 7 and 15
of the Act on Minimum Wage and Minimum Holiday Allowance.
| [prior Title] |