All-in Hourly Wages Permitted for Short-Term Part-Timers
A discussion of the judgment of the Court of Haarlem in
preliminary relief proceedings, 13 March 2009, LJN BH 5921
The facts
Between Albert Heijn et al. (hereinafter: "Albert
Heijn") on the one hand and CNV and FNV on the other hand,
various collective bargaining agreements have been concluded.
Recently, Albert Heijn has decided for competitive reasons to use
all-in hourly wages for all employees with a contract of 48 hours
or less per four-week period, the so-called 'short-time
part-timers'. This means that in addition to the basic hourly
wage the value of the holiday allowance, holiday hours accrued, the
reduced working hours ("ADV hours") accrued and the fixed
part of the profits distribution is paid out. Thus, the wage value
of the holidays accrued but not yet taken is also paid out. CNV and
FNV oppose the introduction of these all-in hourly wages, because
they deem them to be in conflict with the law and applicable
collective bargaining agreements. The trade unions are also of the
view that payment in advance of the salary over holidays not yet
taken limits the employee in his right to take holidays at his own
discretion.
The Opinion of the Court in Preliminary Relief
Proceedings
The Court in preliminary relief proceedings ruled
that all-in hourly wages are admissible. In the opinion of the
Court, neither the payment in advance of the remuneration for ADV
hours accrued nor the payment in advance of holidays is in conflict
with the collective bargaining agreement. With regard to the last
item the Court observed that the payment in advance of holidays is
not in conflict with the law either, since the employer does not
replace the holiday entitlement by an amount of money and there are
no impediments for the actual taking of holidays. In other words:
the entitlement to free time is not liable to suffer as a result of
this change. In the Court's opinion there was therefore no
question of part-timers being put at a disadvantage. What is more,
the Court deemed this manner of payment to be more of an advantage
than a disadvantage for the part-time employees concerned. As a
result, the Court in preliminary relief proceedings denied the
claims of the trade unions.
Tips
• An employer may introduce all-in hourly wages with regard to
short-time part-timers. Note, however, that an applicable
collective bargaining agreement, if any, must offer the opportunity
to do so.
• If the salary over the holidays accrued but not yet taken is paid
out already, it is advisable that the employer keeps a separate
administration with respect to the hours accrued by the employees.
• If an employer decides to introduce all-in hourly wages, he has
to be alert at all times that he continues to offer the employee
the opportunity to take holidays at the employee's own
discretion. The employer has to make sure that he does not limit
the employee in this respect.