Flexible timetables: finally there is a legal framework

Since the introduction of the Feasible and Manageable Work Act companies can opt to introduce flexible timetables, in line with new statutory provisions. Until recently flexible working hours may have been employed in practice, but it was a concept that was not a part of the laws and was only tolerated under specific circumstances. Flexible timetables allow employees to plan their work autonomously according to the workload and also to better combine their work with their private lives. 

The concept of flexible timetables
Within the scope of flexible timetables, employees can set their own start and end times for work as well as their breaks, as long as they comply with the preset required times and flexi-times.That time when the employee is required to be at work is the required time, while the periods where the employee can adjust the start and end of his or her workday as well as any breaks is the flexi-time. Flexible timetables can be employed by both fulltime and part-time employees. 

However, the flexible timetables cannot impair the effective work organisation and the employer can still demand the employee’s presence in certain situations, such as in order to attend meetings. The flexible timetable system was introduced under the Feasible and Manageable Work Act (Wet Werkbaar Wendbaar Werk) in the new article 20ter of the Labour Law, and has been effective as of 1 February 2017. Companies that wish to retain their existing flexible timetable systems, deviating from the new rules, had until 30 June 2017 to formalise their schemes in a collective agreement or in the company regulations. 

Introducing time-tracking systems to companies
The employer can introduce flexible timetables to the company through a collective agreement or in the company regulations. This collective agreement or company regulations must include a number of required details, including:

  • the hours when the employee is required to be present at the company (required time);
  • the average weekly working hours that must be worked within a reference period of 3 months, unless the collective agreement or company regulations provide for a different reference period (maximum of one year);
  • the times for the variable periods (flexi-time) where the employee determines his or her own time or arrival, departure and breaks;
  • the number of hours that can be worked, whether negative or positive;
  • the number of hours that can be worked, whether negative or positive, that can be carried over to the following reference period after the present one lapses. 

A time-tracking system must also be introduced. For every employee this system shall contain at least (i) the identity of the employee, (ii) the duration of the work performed every day and (iii) for part-time employees with a fixed timetable the start and end of the work period, as well as their breaks. This information must be kept for at least 5 years. 

Margin of flexibility
When applying flexible timetables, the threshold of 9 hours a day and 45 hours a week must always be taken into account.The employee shall have to fulfil his or her standard weekly working hours within the applicable reference period, which is generally 3 calendar months, unless it is adjusted in the collective agreement or the company regulations (it cannot exceed 1 year). 

No overtime is payable to the employee by the employer as long as the work is performed in compliance with the conditions and boundaries of the flexible timetables system. An employee employed under a flexible timetable can always exceed the limits of the timetable at the employer’s request, within the statutory conditions for working overtime (such as an exceptional workload), in which event overtime will be payable. 

Payment of wages
The employee remains entitled to receive his or her standard salary for the average weekly working hours (the monthly salary), which means the employee shall receive his or her salary irrespective of the overtime or ‘undertime’ worked in respect of the average weekly working hours. The employee is responsible for ensuring that he or she complies with the flexible time table system and applies it within the prescribed boundaries and conditions. 

If, at the conclusion of the reference period or the employment contract, it emerges that fewer hours were worked than the average weekly working hours, the employer may deduct the ‘excess’ salary paid.However, if it emerges at the conclusion of the reference period that the employee worked more hours than the average weekly working hours, then the employer shall only pay out for those hours that were worked at its request. 

Conclusion
Since the introduction of the Feasible and Manageable Work Act companies have been able to introduce a flexible timetable system.

  • company regulations must be amended with respect to flexible timetables
  • an addendum must be added to the company regulations in which all of the applicable rules for flexible timetables are set out in detail for the employee
  • a time-tracking system must be introduced 
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