The Rotterdam District Court recently issued an interesting ruling on whether there is a valid offer within the meaning of article 38 of the Cleaning CLA (contract handover) if the working hours and/or hours have been changed. Must the incoming cleaning company always offer employees on the object being taken over exactly the same working hours? Even when that is not actually possible? The RAS disputes committee has always been very strict on this. The offer to the employee must exactly match the working situation prior to the offer. In practice, changes to working hours are implemented immediately after the takeover, while the employees precisely agreed to the old conditions and therefore accepted the offer on that basis.
Valid offer under article 38 of the CLA
Under article 38 of the CLA, strictly speaking, the employee being taken over must receive an offer from the winning cleaning company upon contract handover “without any change in working hours and hours” on the object. Otherwise there is an invalid offer. If an invalid offer is made, the winning company must still make a new offer to the employee that is correct in substance. There is a great deal at stake. The winning cleaning company thereby becomes liable for damages. It must reimburse the salary that the losing cleaning company must (continue to) pay until the employee in question has transferred on the basis of a valid offer.
Facts of this case
In the case mentioned above, two cleaning employees of company X worked on a particular object during the evening hours. Subsequently, a new tender took place. Hago submitted a bid and offered the cleaning work during the day instead of in the evening. The client agreed to this proposal. The two employees were offered the opportunity to keep working on the object, but during the day, in line with Hago’s assignment. In addition, Hago offered to work on a different object if they preferred to keep working in the evening.
The two employees subsequently lodged a complaint with the court. They believed that Hago had violated article 38 of the CLA, since they should have received an offer from Hago “without any change in working hours and hours” on the current object, i.e. for cleaning during the evening hours. The employees had therefore not accepted the offer and claimed before the court, due to non-compliance with a CLA obligation, damages equal to one year’s salary plus holiday allowance for lost income.
Court’s ruling
The court ruled that Hago had nevertheless made a legally valid offer upon contract handover to the two employees, even though the working hours had been changed. The court attached importance to the contractual freedom between Hago and the client to change the assignment. It appeared from the tender that Hago had only offered work during the day, so that in fact no work took place in the evening anymore. The client had accepted this. Hago could therefore no longer offer the employees any work in the evening. The offer to the employees would thus also become an empty shell if it were nevertheless offered for the evening hours only to be changed immediately afterwards. In addition, the court considered the CLA obligation for employees to be flexible when working hours change to be important. Finally, it was also relevant that Hago had offered an alternative during the evening hours on a different object.
In short, the (adjusted) offer was indeed valid, and the employees should have been more flexible and cooperative. This on the basis of article 8 of the CLA.
Employee flexibility: article 8 of the CLA
Article 38 of the CLA in fact contains a clear reference to article 8 of the CLA, which holds that the employee must accept, within reasonable limits, a change in working hours, work, or object. Some flexibility may therefore also be asked of the employee in the event of a takeover.
Conclusion
This case shows that the court attaches great importance to making an offer that is consistent with reality and can actually be complied with. In my view, this also prevents employees from being taken over under false pretences.
After all, the main purpose of the takeover obligation upon contract handover is to preserve employment, and not to keep the work on a particular object unchanged forever.
Employers would nevertheless be wise to make an offer to the employees being taken over that matches the current situation as closely as possible. Should a changed offer be necessary, there must be an external and objective reason for it. For example, a change to the assignment by the client or other external circumstances beyond the employer’s control or authority. In addition, where possible, it is advisable to make an alternative offer under which the existing working hours or number of hours can be maintained.
If you have any questions about the foregoing or need legal support with contract handover or in the field of employment law, please contact us.
