Practice has shown that they will be more satisfied, motivated and committed if there is clarity about all relevant personnel affairs within the organization. Needless to say that a personnel policy must comply with the law. That way labor disputes, fines, additional assessments and lawsuits can hopefully be prevented. However, not only the content of the personnel policy should be in conformity with the law, but the formal rules regarding adopting such personnel regulations as well.
Employment terms and conditions
We often notice that employers have included actual employment terms and conditions (In Dutch: ‘arbeidsvoorwaarden’) in their unilaterally adopted internal regulations, staff manual or employee handbook. As an unfortunate result thereof, these employment terms and conditions are not legally binding on the employees.
That is because employment terms and conditions should in principle be agreed upon with the employees. While on the other hand a staff manual or employee handbook can be adopted and amended unilaterally by the employer. For that reason an actual staff manual or employee handbook should (from a purely legal angle) only contain rules in advancement of the organization. In other words: just household rules. For example, rules relating to internet use, personal hygiene and care, how to deal with internal issues, discrimination, sickness absence regulations, general working hours, expense allowances, travel allowances, work clothing, training, etc. And even then a discussion can arise, because there is a fine line between actual employment terms and conditions and household rules.
Regulations within the meaning of the law
This does further not mean that employers cannot impose binding employment terms and conditions in a collective manner. In fact, to that end employers have two options at their disposal. Firstly, agreeing on collective employment terms and conditions with a union in a collective labor agreement. Or, secondly, to incorporate such conditions in so-called regulations within the meaning of the law.
To make sure such regulations have a binding effect on the employees, several statutory requirements will have to be fulfilled. First a complete copy of the regulations must be provided at no cost by the employer to the employee. Second, the employer must deposit a signed and complete copy of the regulations for inspection, at the registry of the court of first instance, within the jurisdiction where the employer is established. And last the employer must post a complete copy of the regulations on the wall at an easily accessible place for the employees. For every Dutch Caribbean Island this has to be done in two languages, such as in Dutch and Papiamento on the Leeward Antilles. Besides these practical requirements, the content of the regulations within the
meaning of the law, may not be in conflict with the individual employment contract entered into with the employee. Any provision that deviates from these requirements is deemed null and void.
It can of course happen that during the employment regulations within the meaning of the law are adopted or the existing regulations are amended by the employer. In that case, these new or amended regulations are only binding on the employees if a complete copy of the draft thereof or of the draft changes, has been made known in good time to the employees. This has to be done in order for them to be able to properly consider the content thereof. In practice we often recommend employers to outline the new or amended regulations to the employees and have them all sign for receipt and approval. If, however, an employee notifies the employer that he does not agree with the new or amended regulations, this notification will be regarded by law as a resignation on the day on which the new or amended regulations will come into effect.
Regulations as part of the employment contract
Besides these regulations within the meaning of the law, we often observe that internal regulations are made a part of
the employment contract itself. In order to ensure that such regulations form an actual part of the employment contract, this has to be explicitly stated in the employment contract. In that event such regulations can contain employment terms and conditions, because they form a part of the employment contract. In other words, these collective employment terms and conditions are then agreed upon with the employees. A disadvantage of this format is that all the rules contained in the internal regulations become a part of the employment contract. So also the household rules that normally an employer would be able to adopt and amend unilaterally. Not anymore if they form a part of the employment contract.
It would thus be well-advised for any employer to review how its personnel policy is set up. Especially in the event a staff manual or employee handbook is used within the organization. Because if a unilaterally adopted staff manual or employee handbook contains actual employment terms and conditions, the employer might not be able to invoke those towards its employees. This can be repaired by removing the actual employment terms and conditions from the staff manual or employee handbook and by placing them in regulations within the meaning of the law. Or by agreeing that the staff manual or employee handbook will become a part of the employment contract. That way the formal rules regarding adopting a proper personnel policy are also complied with.