Employees and employers have many questions, for example, about vacation days. Because there is temporarily less work, some employers want employees to take up their vacation days now. However, many employees prefer to use their vacation days when they can actually travel to go on vacation. What is and isn’t allowed according to the rules?
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In this article, we have collected several situations that are now occurring. We will explain this in more detail. But first of all, to clarify matters, let us provide you with an overview of the rights and obligations. When taking vacation days, several parties are involved: not just the employer and employee, but also the unions and your organisation’s Works Council.
rights and obligations of the employee and employer
As an employee, you are entitled to vacation days/hours. The number of days or hours is laid down in the laws and regulations, the collective labour agreement (cao), the staff regulations and/or individual employment contracts. These documents often also include the procedure for using or requesting vacation days/hours.
There are four types of vacation days/hours:
- Statutory vacation days/hours
4 weeks per year = the average number of hours per week x 4
- Non-statutory vacation days/hours
what was agreed in collective labour agreements or staff regulations for more days/hours than is legally required.
- Leave days
for example, long-term care leave or additional maternity leave
- Overtime, additional hours, compensation hours, reduction in working hours (adv), shorter working hours (atv)
other days/hours off
A brief explanation and background of the rights and obligations:
situation: the employee wants to cancel vacation days
The employee has requested vacation days. The employer has approved this request, but now the employee intends to cancel the vacation days.
The case-law on this matter varies. The change can take place in any case if both employer and employee agree. If the employer does not agree, the employee seems to be entitled to cancel the vacation day request. However, if the employer has valid serious reasons, the employee can be made to take the vacation days after all.
NOTE that since the case law varies, we advise you to reach an agreement.
If the agreements on vacation days are recorded in the collective labour agreement, the employer can also propose alternative (temporary) adjustments for the inclusion of vacation days to the trade unions. Any changes can only take place if both employer and employee agree.
If the agreements on vacation days are laid down in the staff regulations, the employer may propose an alternative (temporary) adjustment to the Works Council. The Works Council is likely to consult with the rank and file to gauge the views of the employees. Any changes can only take place if both employer and Works Council agree.
situation: the employer wants to make the use of vacation days mandatory
Regardless of whether an employee has any vacation days left or has requested vacation days: the employer wants all employees or groups of employees to use their vacation days at a specific time.
The employer cannot decide to modify or change the arrangements made for vacation days. It may be that the conditions in the collective labour agreement state how the employer can set up a company closure for holidays or compulsory holiday closure.
If nothing has been included about this in the collective labour agreement, it is a subject for which the employer must seek the approval of the Works Council. This is governed by the Works Councils Act (Art. 27 WOR, section 1b “a working and rest period scheme or a vacation time arrangement”). Even with the agreement of the Works Council, employees do not have to use their vacation days if they do not want to.
situation: the employer wants to make the use of adv days mandatory
In the collective labour agreement, the staff regulations or the individual employment contract, it is agreed how adv days are accrued and how they are used by the employee. The employer wants to make the use of adv days mandatory.
Just as the employer cannot decide to adjust or modify the agreements on vacation days (once), the agreements on adv days cannot be altered unilaterally, even if nothing has been laid down.
The employer must comply with the agreements made in the collective labour agreement or with the Works Council. If the agreements state that the employer determines how and when adv days can be used, the employer can force the employee to stick to this agreement. If there nothing about a situation like this in the agreements, the employer must consult the trade unions or the Works Council.
If the adv days/hours are recorded in the collective labour agreement, the employer must consult with the trade unions to make an exception to the collective labour agreement.
If the adv days/hours are regulated in the staff regulations, the employer must get approval from the Works Council. This is documented in the Works Councils Act (Art. 27 WOR, section 1b “a working and rest period scheme or a vacation time arrangement”).
situation: the vacation days from 2019 expire on 1 July 2020
Any vacation days the employee accrued in 2019 must be used by the employee before 1 July 2020. After that date, the unused vacation days expire; they no longer exist, and the employee cannot use them.
The rules are clear: the vacation days expire if no other arrangements are made. However, the employee cannot help it that they cannot use the vacation days to go on an actual vacation. They cannot fly abroad or take the caravan to the campsite.
There are two exceptions:
- The employer agrees with the employee that the days will not expire.
- The employee has not been able to take a vacation, for example, because they have not been given the opportunity to take a vacation or due to a medical issue.
TIP: It might be wise to use vacation days now, during this period of working at home. This means you do not have to sit at home with your laptop and be available for work. It may feel a little more relaxed without working from home.
situation: the employer wants to make the use of overtime hours mandatory
The organisation has an overtime arrangement: the employees get the overtime back in vacation hours. The employer wants the overtime hours to be used at a certain time or within a specified period.
Overtime occurs when the employee works more hours than agreed in the employment contract during a week, at the employer’s request.
The agreements on overtime (pay-out, time-for-time, saving and using overtime, overtime allowance, etc.) are laid down in the collective labour agreement, the staff regulations or in the individual employment contract. In some cases, it has been agreed that overtime ‘is part of the job’ and is therefore not recorded or paid.
The employer must comply with the agreements made in the collective labour agreement or with the Works Council. If there is nothing about a situation like this in the agreements, the employer must consult with the trade unions or the Works Council.
If the overtime or additional work days/hours are laid down in the collective labour agreement, the employer must consult with the trade unions to make an exception to the collective labour agreement.
If the overtime or additional work days/hours are regulated in the staff regulations, the employer must get approval from the Works Council. This is documented in the Works Councils Act (Art. 27 WOR, section 1b “a working and rest period scheme or a vacation time arrangement”).
The Works Council has rights and obligations. Sometimes, the Works Council has the right of consent or consultation. This particular situation in which we all find ourselves now requires unique solutions. Perhaps you, as a Works Council, understand very well that it is wise if everyone takes up one vacation day a week in the coming weeks, to name an example. Employees may also agree. But remember that you must, perhaps temporarily or only once, adjust the rules. This still requires a request for consent.
Our urgent advice is to always document changes in policy or regulations for the organisation; in this example, it is a request for consent to taking a mandatory day off every week. The Work Council’s response can be very brief: ‘agreed for period XX’. This response is a good record of what you have agreed and will prevent misunderstandings in the future.
more questions about vacation days?
Some everyday situations have been outlined above. But perhaps you have another question about vacation days in this ‘time of corona’. Do you want to know how to deal with that particular situation? Do you want to know the rights and obligations of the employee and employer? Contact us, and we will answer your question.
These special times call for thoughtfulness and decision-making on matters that we have not had to consider before. For your convenience, we’ve collected several articles that might be useful at this time:
- coronavirus: situations and considerations for the Works Council
- Vacation days in times of corona: what are the options for employers and employees? [just read]
- ‘General management has decided that our salary will be reduced. Is that allowed?’
- ‘pressure cooker’ advice or consent: because sometimes that’s what is required
This article was written by Sander Vrugt van Keulen and verified for legal accuracy by Karen Maessen, LLM at De Voort Advocaten | Mediators.
Note: Please note that we are a Dutch organisation and that all our information is originally composed in Dutch. For the benefit of our English-speaking customers we have translated some of our online information. We are still in the process of translating even more of our information. It could therefore be that you will come across Dutch pages on CT2.nl. Please contact us if you would like more information.