Employer is Allowed to Change Coffee Break Scheme

Year of publication

2019


Year of publication

346


Reference

Arnhem-Leeuwarden Court of Justice June 11, 2019, ECLI:NL:GHARL:2019:4895


Decision

An employer was allowed to return to a schedule so that coffee and tea were collectively provided at fixed times during working hours in the morning and afternoon and allowing coffee and tea to be consumed during working hours.

A number of municipalities had the tasks that arose from the Participation Act for those municipalities jointly carried out by a legal entity governed by public law. The social working company they had thus established applied a standard collective labour agreement (CAO). This implied that the CAO should not be deviated from, even if it would benefit the employee. According to this CAO, working hours were arranged in time schedules, but it was up to the employer to decide for posted employees if the regular working hours of the company where they were posted would apply. The working hours schedule for the social working company was established after consultation with the works council and provided for a fourteen minutes coffee and tea break in the morning and another fourteen-minute break in the afternoon. The choice for duration of fourteen minutes was made because, according to the Working Hours Act, in that case there was no interruption of the working time.
Due to its poor financial situation, the social working company had seconded some of its employees to a specially established company that was part of a private company. This company was run more like a "regular" company. At the start of the secondment to the private company, the social working company had announced that the employment contract with the social working company would be maintained, but that for the working hours the schedule of the private company would apply. Initially, the coffee and tea break schedule remained unchanged, but after about six months the schedule for the posted workers was aligned with the schedule that applied to the private company’s own employees. This implied that two 15-minute breaks in the morning and in the afternoon applied. Since these breaks did not count as working time, they were not paid-out. As a result, the posted workers had to work half an hour longer each day. There had been no consultation with the works council about the change in the schedule.
The FNV trade union opposed this change to the coffee and tea break schedule, but was neither successful before the Sub-district Court, nor before the Court of Appeal. Both the FNV and the Court of Appeal held the opinion that the standard nature of the CAO does not preclude collective provision of coffee or tea at a set time and during working hours. But unlike the FNV, the Court of Appeal was of the opinion that such an arrangement fell under the employer’s right to issue instructions arising from the employment contract and that the employer was allowed to replace a given instruction by an instruction abolishing or modifying the collective interruption of work.
According to the Court of Appeal, there was no conflict with good employment practices either, because the employer's right to issue instructions allowed so and because, at the time of the seconding, the employees were informed that the working hours schedule of the private company would apply.
The Court of Appeal did believe, however, that the social working company should have requested the approval of the works council about the working time break, but this fell outside the scope of the case between the parties since it was about the introduction of additional breaks and not about abolition of the collective work interruption.


Comments

Disagreements between an employer and his employees about “the coffee break” are not unusual, but they are seldom the subject of legal proceedings. In its judgment, the Court of Appeal shows that a distinction should be made between introducing extra breaks, involving an interruption of the working time, and using part of the working time for the collective provision of coffee and tea. Introducing extra breaks concerns a regulation of working and rest periods and the works council has the right to consent with regard to such a regulation. But whether or not coffee and tea is provided collectively during working hours, and whether or not coffee and tea may be consumed during working hours, falls under the employer's right of instruction, arising from the employment contract. Therefore the employer is allowed to make the decision within the limits of being a good employer.
In fact, the employer should have asked the works council for approval before introducing the extra breaks, but in that case the employer might have put pressure on the works council by stipulating that without their consent consumption of coffee or tea during working hours would no longer be allowed.



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