The Flexible Work Act (WFW) will enter into effect on 1 January 2016. The WFW supplements the Amendment of the Working Hours (Adjustment) Act (WAA). This supplement means that any references to working hours also include the place of work and work times. The WFW states that employees who have worked for at least 26 weeks (this period is currently a year) may ask their employer to adjust the amount of working hours, place of work and/or work times.
At least 10 employees
The request may only be made by employees of an employer who has 10 or more employees. Smaller entrepreneurs must make an arrangement concerning the right to adjustment for their employees.
Adjustment of working hours, place of work, work time
On the basis of the WFW, an employee may, for example, ask to perform more or less work, to work from home, or to arrange their work times differently. If a request is refused, an employee may submit a new request within a year (this period is currently two years).
Employees must submit a request for a change to their working hours, place of work and/or work times in writing at least two months (currently this is four months) before the date on which they would like the change to take effect. The request must state the time of entering into effect, the desired change to the working hours, desired place of work or the desired distribution of working hours over the week.
The act stipulates that employers must consult with employees about their request and inform them of their decision in writing. If an employer decides to turn down an employee’s request, they must state their reasons for doing so in writing.
If an employer has still not announced his decision a month before the date on which the adjustment requested by the employee is due to commence, the working hours, place of work or work times will be adjusted to comply with the employee’s request.
Grounds for refusal
The grounds for refusing a request to adjust working hours, the place of work and/or work times are as follows:
Employers may only refuse a request to reduce the number of working hours if this reduction would lead to serious problems with regard to:
- operational management when re-allocating the newly available hours;
- safety; or
The employer may only refuse a request to increase the number of working hours if this increase would lead to serious problems with regard to:
- finances or organisation;
- a lack of available work, or
- insufficient fixed manpower capacity or staff budget.
These grounds for refusal are unaffected by the new act. In view of existing jurisprudence, employers will not easily be able to refuse a request to adjust working hours.
Place of work
The above grounds for refusal do not apply to a request to change the place of work (e.g. working from home). Employers are obliged to consider an employee’s request to perform their work elsewhere and consult with the employee if they refuse this request. This suggests that it will not be easy for employees to enforce a request for a change of workplace.
Employers may review a decision regarding a change of work place if interests regarding the work place arise after the decision was made or if substantial business interests or service-related interests as referred to in the section on working hours arise after the decision has been taken.
Employers may only refuse to adjust the work times if there are substantial business interests or service-related interests for doing so. This is the case if the change could lead to serious problems with regard to:
- timetables; or
- finances and organisation.
Collective Agreements may deviate from this act with regard to working hours, alternative work places or work times. If there is no Collective Agreement, deviations are only possible if a written agreement has been reached through the Works Council or employee representatives.