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At the end of 2005, the Confederation of Netherlands Industries and Employers (VNO-NCW) announced that it wanted to ask employees to swap days off for a higher salary. If the membership base agrees to the idea, such a swap would be brought up in the forthcoming collective bargaining rounds. At the start of 2006, the Ministry of Social Affairs also made it known that employees could be paid out for regular days of leave. The Dutch Federation of Trade Unions (Federatie Nederlandse Vakbeweging, FNV) initiated legal proceedings bringing the case before the European Court, with success it would seem.
At the end of 2005, the Confederation of Netherlands Industries and Employers (VNO-NCW) announced that it wanted to ask employees to swap days off for a higher salary. The underlying aims are to make working for longer more attractive and to expand flexible employment forms in general. Over and above the statutory leave period of four weeks, there are loads of arrangements: for a fifth week of leave; for inconvenience days; and for extra days off for various target groups. All of these days could be paid out. If the membership base supports the idea, such a swap will be brought up in the forthcoming collective bargaining rounds; the proposal is to enable additional income to be credited to the new life-cycle leave arrangement. At the same time, VNO-NCW does not want employees currently holding small part-time positions to ask for bigger part-time jobs en masse, a legal right, which compensates little in terms of employer conceptions about flexibility. Agreements would also have to be reached about this through collective bargaining.
In an informative brochure published at the start of 2006, the Ministry of Social Affairs also made it known that employees may be paid out for days of leave. The rationale here is that endlessly accumulated days of leave from previous years of service, over and above the statutory minimum, must be subject to limits. Reservoirs of days off will lapse after five years; sabbaticals and world trips cannot be financed on this basis. It has been suggested that based on compensation, rights to part of the statutory minimum period of leave can be waived.
The Dutch Federation of Trade Unions (Federatie Nederlandse Vakbeweging, FNV) had particular difficulty with the latter suggestion. According to the European Working Hours Directive, a minimum period of annual leave may not be compensated for financially, unless in cases of termination of the employment relationship. According to FNV, the explanation of Dutch law by the Dutch government therefore contravenes European law. What’s more, the federation fears that because of the Dutch government’s explanation, employees will be placed under pressure by their employers not to take the statutory minimum leave period due to them. And, saving up days off could then become a form of overtime over which no surcharge is paid. FNV submitted a case against the Dutch government to the European Court.
Advocate General Kokott, the most important advisor to the European Court of Justice, agrees with the position adopted by FNV. The government proposal contravenes European law. European citizens have a right to four weeks’ recovery time a year. The Court of Justice in The Hague has now called on the European Court to render a preliminary ruling. The court will issue a ruling within months. In 80% of the cases, the advocate general’s ruling is followed.
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