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In the case of a flexible employment contract where an employee works an average number of hours per week, the employer may, under certain conditions, allow unworked hours to be made up as negative hours — even if this is due to a lockdown. The court ruled that retail chain Wibra correctly applied the collective labor agreement in doing so and acted as a good employer. The risk of work being lost is inherent to such a flexible contract.
The interim relief judge ruled that Wibra applied the collective labour agreement correctly by allowing employees to make up hours that could not be worked during the coronavirus lockdown. It shows that flexible employment contracts have advantages — although permanent employment can sometimes actually be more attractive.
What was going on?
Wibra employees have a flexible contract: they work an average of a certain number of hours per week and receive a fixed monthly salary based on that average. At the end of the year, settlement follows — hours worked in excess are paid out, while hours not worked lapse (without negative wage adjustment). This is permitted under Article 4 of the Retail Non-Food Collective Labour Agreement.
During the lockdown, employees were unable to work. Wibra classified these hours as negative hours, which had to be made up after the lockdown. Some employees faced difficulties due to personal commitments, and the FNV trade union intervened: this was allegedly in violation of Article 7:628 paragraph 1 of the Dutch Civil Code (the employee retains their wages if they do not work due to a cause attributable to the employer), and Wibra was deemed not to be a good employer, partly because it received a coronavirus subsidy.
The verdict: collective labor agreement applied correctly
The District Court of Gelderland (ECLI:NL:RBGEL:2021:3414) ruled that the risk of being unable to work due to a lockdown did not lie with the employer in this case: a flexible employment contract is specifically intended for situations in which the employer cannot offer work. Furthermore, Article 4 of the collective labour agreement applied not only to peak and sick hours, but also to substantial peaks and troughs such as a lockdown.
Regarding good employership, the judge was clear: Wibra properly adhered to the agreement and continued to pay wages during the lockdown, while the stores were closed and there was hardly any turnover. For the rest of the year, employees only had to work an average of about 40 minutes extra per week — not an unacceptable consequence. Wibra therefore acted correctly and as a good employer.
Flexible or fixed?
Flexible contracts are useful for highly variable work and cover unexpected events. There are various forms, such as the minimum-maximum contract, the on-call contract , and the zero-hours contract. There are also disadvantages: flex workers are often less loyal, and due to the Balanced Labour Market Act (WAB), flexible, temporary contracts have become more expensive for employers.
Frequently Asked Questions
Am I allowed to make up hours not worked under a flexible contract?
Under the right collective labor agreement and contract conditions, this is possible, even in the event of work being lost due to, for example, a lockdown. The risk of having no work is inherent to such a flexible contract.
Does an employee retain their salary if there is no work?
That depends on the type of contract and the cause. With a flexible contract, which is specifically intended for variable work, the risk of having no work does not automatically lie with the employer.
Is a flexible or a permanent contract better?
That depends on your situation. Flexible work is suitable for highly variable work, but it can provide less commitment and is more expensive due to the WAB. Seek advice on a case-by-case basis.
Choosing the right employment contract
The employment lawyers at MKB Juristen help you choose between permanent and flexible employment and draft the contract. View our expertise in employment law or schedule an intake meeting .
