Netherlands Update: Statement of the week “Should free hours be rewarded the same as (extra) statutory holidays”?

In a principled judgment, and a ‘must-read’ for lovers of case law on holiday legislation, the Supreme Court ruled on the value of an extra-statutory leave claim from the COLLECTIVE LABOUR AGREEMENT of NS.

What was going on? An NS employee makes use of the facility ‘Regulation on short-time work for older employees’ (RO scheme), as provided for in the COLLECTIVE LABOUR AGREEMENT. The meaning of this is that he uses free hours to shorten his working week to 32 hours a week. In the COLLECTIVE LABOUR AGREEMENT of NS, a distinction was made between leave hours (statutory holidays) and free hours (non-statutory holidays). The NS argued that the way in which the employee used the free hours – shortening the working week – could no longer be equated with taking a holiday and therefore the remuneration over those hours should not be equal to the value of a holiday. The NS therefore did not pay an irregularity surcharge on the hours off taken.

NS is taking a stand in three instances. The Supreme Court explains nicely that ‘Whether a leisure claim has to count as a holiday within the meaning of art. 7:634 CC depends on whether the purpose of this claim is to provide the employee with paid leave in connection with the workload that weighs on him’. If the employee then uses the leave for another purpose, this does not change the nature of the claim.

The NS must reward the free hours taken – in order to make use of the Scheme for the reduction of working hours for older employees – in the same way as vacation days. The employee was therefore entitled to subsequent payment of irregularity allowance over those hours.

In my view, the significance of the ruling is not limited to this particular issue. In a significant number of collective agreements, employees are granted entitlements to free hours that do not fall directly under the heading ‘vacation days’. For example, ‘Personal life phase budget hours’. Are these hours intended to “provide the employee with paid leave in connection with the workload that weighs on him”? I would think so. This would mean that these would ‘just’ have to be settled as regular vacation days, so including holiday pay, ORT, bonus, etc. In my experience, this is not the practice.

By Hocker, Netherlands, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact netherlands@transatlanticlaw.com

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 42 Brook Street, London W1K 5DB, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.