Payment of ATV Days
Supreme Court, 2 October 2009 JAR: 2009/271
Holidays in the Dutch Civil Code
The law provides that holidays are meant for
employees to enjoy in reasonable freedom, for the purpose of their
recovery and rest. The Dutch Civil Code ("DCC") contains
various provisions about holidays, which are partly based on
relevant European legislation. For example, Section 7:634 DCC
stipulates that a fulltime employee is entitled to paid annual
holidays of at least four weeks. Section 7:640 DCC stipulates that
during the term of the employment agreement an employee cannot
waive his entitlement to his (minimum) holidays and convert it into
compensation. If at the end of the employment agreement an employee
is still entitled to any holidays, he will receive a financial
compensation for them. Reduction of working time
("Arbeidstijdverkorting" or "ATV"), on the
other hand, is not provided for in the DCC or elsewhere.
The Facts
The facts are as follows. Two employees had been employed by an
employer. Their employment contracts were subject to the Collective
Bargaining Agreement ("the CBA") for liquor stores. One
article in the CAO provides for a reduction of working time scheme.
This article stipulates that an employer who has a normal working
time per week is entitled to 124 scheduled days off per calendar
year. Furthermore, it is stipulated that this article shall apply
pro rata to an employee who works less than the normal weekly
working time or who enters the employment in the course of the
calendar year, or whose employment is terminated. The two employees
had not enjoyed any ATV days during their employment, and they
claimed financial compensation for this after the end of their
employment. The Supreme Court examined this matter.
The Supreme Court
First of all, the Supreme Court considered the relationship between
holidays and ATV days. The Supreme Court held that ATV schemes were
basically created in order to fight the loss of jobs and to create
new jobs. The purpose of holidays is a different one, namely to
allow the employees paid leave in view of the workload that weighs
on them. As a consequence, the Supreme Court concluded that the
statutory provisions concerning holidays are not applicable to ATV
days, either directly or by analogy. In the opinion of the Supreme
Court, the foregoing means that the arrangements made between the
parties or the provisions in the employment agreement or in the CBA
are decisive to the question as to whether an employee can claim
financial compensation for ATV days not taken. The applicable CAO
contains no stipulation under which the employee is awarded
compensation for any ATV days not taken. However, the Supreme Court
is of the opinion that it cannot be deduced from this that there is
an omission, especially since other provisions in the CBA do
provide that the employee receives financial compensation in other
cases, for example in the case of holidays and days
off.
Tips
Since the Supreme Court has ruled that the statutory regulation
on holidays does not apply to ATV days, it is recommended to
include explicit rules in the CBA, the employment agreement or the
staff rules on how to deal with ATV days. The following aspects may
be considered:
- Stipulate that any ATV days not taken will not be part of
the final settlement and will not be paid out to the employee
at the end of the employment.
- In order to prevent that employees save up big amounts of
ATV days in order to take them simultaneously at a later time,
it is recommended to stipulate that any ATV days accumulated
but not taken will be deemed to have been taken at the end of
the calendar year.
- To accommodate the employee, the employer may also choose
to pay out a number of ATV days not taken to the employee at
the end of the calendar year, or to allow the employee to carry
forward a maximum number of ATV days to the next calendar
year.