The Amsterdam Court of Appeal has ruled in a dispute over pay and overtime between a transport company and six drivers concerning the application of the Collective Labour Agreement for the Road Haulage Sector (the CLA). The judgment addressed questions about payment of wages under an irregular work schedule and the (im)possibility of paying out reduction-of-working-time (ATV) days in another manner.
The drivers work according to a fixed pattern of four days of day shifts, four days off, four days of night shifts and then another four days off. The salary earned over sixteen weeks is evenly distributed by the employer and paid out every four weeks as a fixed amount, in order to prevent fluctuations caused by allowances (weekends, overtime). The Court considers this even “smoothing” of pay to be permissible in itself.
The provision in the CLA guaranteeing that employees must be paid for at least 40 hours was not an obstacle here, since the smoothing in fact resulted in payment for 42 hours. Employees who worked fewer than 40 hours could likewise not invoke the guaranteed hours.
Furthermore, the Court held that the employer breached the CLA by requiring employees to “surrender” ATV days to compensate for paid breaks, instead of scheduling these days or giving the drivers the opportunity to take them. ATV days (Arbeidstijdverkorting – reduction of working time) are additional days off granted to employees because the agreed working hours in their CLA or contract are shorter than the hours actually worked. According to the Court, untaken ATV days must be compensated in the same way as untaken holidays. This follows, among other things, from the fact that the CLA explicitly refers to the holiday scheme for the taking of ATV days. Moreover, employees would lack effective legal protection if they had no right to payment of untaken ATV days where the failure to take them was caused by the employer.
In practical terms, this judgment means that:
- the even “smoothing” of pay in the case of irregular schedules is permissible, provided employees in fact receive at least the pay guarantee under the CLA; and
- ATV days may not silently lapse or be unilaterally set off against other benefits (such as paid breaks), but, if not taken, must in principle be compensated financially, comparable to untaken holidays, as part of effective protection under the CLA.