Adjusting contracts: What are your rights?

Questioner

Good day, I have a question regarding my contract hours, which are 40 per period, but I have been working above my contract hours for at least 2 years now. Can I demand that my contract be adjusted? I now work an average of 25 to 30 hours a week, while my contract requires 10 hours.

Lawyer

If you structurally work more hours than initially agreed, the scope of work is presumed to have increased to the average number of hours you have worked over the past three months, on the basis of Article 7:610b of the Dutch Civil Code. Since this is a presumption, the employer is free to provide counter-evidence and thus substantiate that the scope of work - although you have structurally worked more hours in the last three months - still amounts to four hours per week. This may be the case - for example - if you have had to work overtime (a lot) temporarily to replace sick or holidaying colleagues. The burden of proof of this counter-evidence, however, rests on the shoulders of your employer. Given the fact that you have been working more hours on average over a period of 2 years, I expect that your employer will not be able to provide that proof. If you want this to be recorded in writing, you must enter into discussions with your employer. If relations are good, I would first discuss this verbally, and only proceed to sending letters if you cannot reach an agreement in personal discussions. In that discussion(s), you must then state that you are invoking this legal presumption, that you are available for that number of hours and that you are entitled to the salary corresponding to those hours (regardless of whether you are actually called in for all hours). For the sake of completeness, I would like to point out that this position can put pressure on the employment relationship(s), especially if the employer prefers not to guarantee you this number of hours in writing. If you expect to be called up for an average of 25 to 30 hours per week in the coming period (also), I would therefore advise you not to bring up this subject for the time being, but to postpone discussions about it until you actually start being scheduled/called up less. Because the presumption of evidence regarding the scope of work is in principle based on the preceding period of 3 months (although a longer period can be considered under certain circumstances, if that provides a more representative picture), it is wise in that case to start the discussions immediately as soon as you suspect that you will be scheduled/called up less. For the sake of completeness, I would like to note that you are also entitled to sickness benefits for this number of hours if you unexpectedly become ill. If you have any further questions or are unable to reach an agreement with your employer, I would be happy to discuss with you what I can do for you.