Changing the labour agreement

Your employer can decide that your labour agreement must be changed. Sometimes the company is going through some financially bad weather and your employer can see it fit to adjust your salary or change a bonus arrangement. The company can move or a location can close. Another reason to adjust the labour agreement, is the work-related expenses scheme, which became mandatory on January 1 2015. Of course the employer and the employee in question always have to try to sort this out together, but what if this does not work?

Unilateral changes clause

First of all two kinds of labour agreements must be distinguished: those with and those without a unilateral changes clause. A unilateral changes clause is a provision which enables the employer to change the labour agreement unilaterally. This makes it easier to alter the labour agreement, but it does not give the employer permission to just do this however he or she pleases.

Substantive interest

A labour agreement may only be changed unilaterally when the employer has such a substantive interest, that your interests as employee are reasonably outweighed. The case law from the last few years shows that three steps have to be taken:

1. Changed circumstances must have occurred, that force the employer to change the labour agreement on certain points;
2. The proposal of the employer must be reasonable;
3. It has to be established whose interest is bigger; the employee’s interest to maintain the labour agreement unchanged, or the employer’s interest to adjust the labour agreement?

No unilateral change clause

When no unilateral change clause is included in the labour agreement, it becomes more difficult, but not impossible. In such cases, the principle of reasonableness and fairness will be the assessment framework. This is a vague norm, that is coloured by the behaviour of the parties in their subsequent roles.

Case law

Firstly the employer must have a direct reason to propose an amendment to the labour agreement. This proposal must be reasonable under the given circumstances. If this is the case, in general the employee is expected to react positively to reasonable proposals. This means that an employee may only reject a reasonable proposal, if it is unreasonable for the employer to accept it.

Circumstances of the case

The circumstances of the case also matter. Employees have to be treated equally. It is for instance not possible to only ask women to hand in salary and not men. The period of employment and the financial consequences also have to be taken into account. Something else judges consider, is whether the employer has done research on whether there are other solutions, that could prevent the adjustments to labour agreements. All these factors together determine whether an employee should or should not react positively to the adjustments, proposed by the employer.

More information

Are you an employer and do you want to change a labour agreement or are you an employee who wants to know more on this subject, please contact our attorney, Suzanne van Dijsseldonk LL.M.