Employment Law Newsletter > November 2010

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1 Employment Law Newsletter > November 2010 In this issue Guide for working from home The Health and Safety Inspectorate can seize administration in case of underpayment Subsidy for more awareness of industrial risks Amendment to risk inventory regulation for small employers ABN AMRO has to fulfill commitments with regard to bonus and severance payment Guide for working from home Earlier this year, we wrote in Edition 4 of our newsletter that a work group of the Mobility Management Taskforce would publish a guide dealing with working conditions legislation and regulations for employees who will be working from home. This was done as a result of the fact that based on the working conditions legislation and regulations, the employer is responsible for providing good and safe working conditions for its employees. At the same time, by working from home the employer has less influence on and insight into the way its employees work, which could make the employer hesitant to let his personnel work from home. In the meantime, the guide has been published and it gives concrete tips to fill in this responsibility of the employer. The emphasis is not on control, but especially on thorough preparation, prevention and consultation with employees. The guide can be downloaded at Source: Mobility Management Taskforce, September 22, 2010 The Health and Safety Inspectorate can seize administration in case of underpayment A legislative bill was submitted that will give the Health and Safety Inspectorate the authority to seize administration of an employer in case of a suspected underpayment. The Health and Safety Inspectorate already has this authority in case of a violation of the Foreign Nationals (Employment) Act. One of the tasks of the Health and Safety Inspectorate is to check if employers pay at least the legal minimum wage and the obligatory vacation bonus. In order to examine this, the Health and Safety Inspectorate will have to be able to calculate the amount of underpayment and therefore needs to have the relevant administrative documents. attorneys tax lawyers civil law notaries Employment Law Newsletter > November 2010

2 Based on the current legislation, the Health and Safety Inspectorate only has the authority to review the administration of employers and to take it with them in order to make copies. When employers do not cooperate, a report can be drawn up. However, in practice this sanction does not compensate for the financial benefit the employer can receive with the underpayment. The legislative bill is in the House of Representatives. Source: Ministry of Social Affairs and Employment, September 16, 2010 Subsidy for more awareness of industrial risks The Ministry of Social Affairs and Employment tries to reduce the amount of industrial accidents with a temporary subsidy scheme for entrepreneurs of small and medium-sized enterprises (SMEs). In particular, the construction, hotel and catering, agriculture and transport industries show many risks. And amongst employees, particularly young persons, immigrants and flexible workers are at risk because they are insufficiently aware of the risks of their field. Research shows that it is possible to reduce the number of work-related accidents through awareness campaigns. With the use of the subsidy scheme, the SME entrepreneur is able to buy advice or support guidance with an occupational health and safety expert. The regulation does not deal with creating rules or guides on how employees should work safely within an organization, but it creates awareness regarding safe working within the organization and how behavior or culture can be influenced. You can find more information regarding the Temporary incentive for work safety through behavioral change on the website of the Ministry of Social Affairs and Employment. Source: Staatscourant online, October 21, 2010 Amendment to risk inventory regulation for small employers In the future, employers with up to 25 employees will no longer have to involve an occupational health and safety core expert in the review of a risk inventory and evaluation instrument. In order to have an effective working conditions policy, the employer needs to have a good understanding of all the risks that could occur in his company. That is the reason why the Working Conditions Act determines that the working conditions policy of the employer must be based on a reliable written risk inventory and evaluation.

3 Research shows that small companies in particular are struggling to meet their risk inventory and evaluation obligation. The costs and efforts of drawing up and verifying a risk and inventory evaluation are the main cause for this. That is why a legislative bill has been submitted that determines that an employer with up to 25 employees no longer has to have an occupational health and safety core expert review its risk and inventory evaluation. The condition is that such employer must use a risk and inventory evaluation instrument that is reported to the Minister of Social Affairs and Employment (or an institution designated by the minister). It is furthermore explicitly included in the legislation once more that the employer is obligated to give the employees the opportunity to view the risk and inventory evaluation. The legislative bill has to take effect on January 1, Source: The Dutch Lower House 32397, June 2010 ABN AMRO has to fulfill commitments with regard to bonus and severance payment The Court of Appeals in Arnhem decided that ABN AMRO has to fulfill its obligations with regard to bonuses and termination payments to former employees. ABN AMRO requested that key talent employees stay on during the takeover by a consortium of banks. ABN AMRO promised employees at that time that they would receive a retention bonus and that they would be able to receive a termination payment in case of a later leave based on the policy applicable at the time. After making these promises, but before the employees left, ABN AMRO established a new policy to determine the amount of the termination payment and decided not to observe the earlier agreements with regard to repatriation grants and the retention bonus. The Subdistrict Court in Utrecht decided that ABN AMRO had to observe existing agreements and promises that were made in the past. The Subdistrict Court in Amsterdam, however, decided that according to criteria of reasonableness and fairness the employee is acting unacceptably by demanding fulfillment of the commitments. The Court of Appeals in Arnhem followed the Subdistrict Court in Utrecht and decided that ABN AMRO cannot change the established commitments unilaterally and is obligated to pay compensation based on the old policy. Unforeseen circumstances, including the credit crises, the state subsidy and the changed social opinion on bonuses and redundancy arrangements, as argued by ABN AMRO, are no grounds to change the commitments.

4 Employees stayed on at the urgent request of ABN AMRO. Based on reasonableness and fairness it can be expected that ABN AMRO will fulfill the financial commitment in exchange for the employees staying on. Furthermore, the credit crisis does not result in ABN AMRO being unable to pay the promised compensation and bonuses. The state assumed with the intervention that existing working conditions had to be respected. Insofar as ABN AMRO answered the social criticism regarding the remuneration policy with its policy changes, this does not mean that the employees cannot appeal to ABN AMRO to comply with what was agreed to with them earlier. Furthermore, ABN AMRO is a large organization from which corresponding social responsibility can be expected. The results of the remuneration policy used by ABN AMRO in the past should be for the account of ABN AMRO, instead of the individual employee. That is why it cannot be expected that employees let go of claims on earlier committed bonuses and termination payments, especially since several employees left 6 months earlier with a termination payment based on the old policy. ABN AMRO therefore needs to comply with the established commitments. Source: Court of Appeal Arnhem, September 28, 2010

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