Personnel: Flexible Working Act: outside the office and outside office hours

The ‘Flexible Working Act’ will give employees more opportunities to work outside the office and outside office hours. Under what conditions can the employer reject such adjustments? Is it possible to derogate from the statutory regulations?

The new ‘Flexible Working Act’ (in full: ‘The Working Hours Adjustment Act to promote Flexible Working’ includes an adjustment of the already existing Working Hours Adjustment Act (WAA). In short, employees will be granted more opportunities than just increasing or decreasing the hours of work. As from (probably) 1 July 2015, the right to adjust the place of work and the right to adjust the working hours will also be laid down in law. The new law will only apply to businesses with more than 10 employees.

Adjustments in relation to the former situation

Under the previous scheme (WAA), employees were allowed to submit a request for the adjustment of the hours of work after one year of service. Pursuant to the new law, a request for adjustment can already be made after 26 weeks for:

1. Adjustment of the number of hours of work;
2. Adjustment of the working hours;
3. Adjustment of the place of work.

Pursuant to the new law, a request for adjustment must be made two months before the intended commencement date instead of the four months under the previous scheme of the WAA. Both granting and rejecting a request must be done in writing.

Employer rejects request

A request for adjustment of the number of hours of work or working hours can only be rejected under certain circumstances. This will only be possible for substantial business- or service interests.

The law provides that it’s a matter of substantial business- or service interests regarding the decrease in the working hours if this will lead to serious problems:

1. for the business operations when re-allocating the time that becomes available;
2. in the field of safety, or
3. regarding the organization of the roster.

It’s a matter of substantial business- or service interests regarding the increase of working hours if this will lead to serious problems:

1. of a financial or organizational nature;
2. if there isn’t sufficient work, or
3. because the positions or personnel budget are insufficient.

It’s certainly a matter of substantial business- or service interests regarding the adjustment of working hours if this adjustment will lead to serious problems:

1. in the field of safety;
2. regarding the organization of the roster; or
3. of a financial or organizational nature.

The rules are less strict when it comes to a request for adjustment of the working place. In this case, an employer only has to take the application into consideration. Any substantial business or service interests are not required for rejecting an application.

If an employer rejects the request by an employee, the rejection must be substantiated. Besides, employees will have to wait one year before they can submit a new request after a request for adjustment of the number of working hours, working place or working hours has been granted or rejected.

Derogation possible?

The new law can be derogated from by a collective labour agreement or by a written agreement with the works council or, if this doesn’t exist, with the employee representative body.

Action

List the potential problems (including legal issues) and possibilities which may arise in your business or organization by adjusting the working hours or working place. That way you will be prepared in case an employee submits a request for adjustment.

More information

Would you like to know more about the Flexible Working Act? Or do you have any other questions regarding the adjustment of working hours, working place or the adjustment of employment conditions and employment contracts? Please contact: