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    The statutory right to rest and have breaks regulated by the ‘Arbeidstijdenwet’

    The ‘Arbeidstijdenwet’ (Working Hours Act) does not only contain rules pertaining to the maximum number of consecutive hours an employee may work. With respect to safety and good health, it is also important employees take breaks and have the opportunity to rest and catch their breath in between shifts. The ‘Arbeidstijdenwet’ therefore also contains rules and regulation on the latter.

    The ‘Arbeidstijdenwet’ contains quite the number of rules and regulations pertaining to the working hours of employees. The maximum number of working hours permitted per day, per shift or per week, the maximum for longer periods, such as months, and also the minimally required rest time in between shifts are all covered by the act.

    Moreover, there are many special rules applicable to e.g. younger individuals, pregnant employees, exceptional professions (such as medical staff, fire fighters, etc.) and exceptional circumstances.

    Both your organization and your employees must comply with these rules and regulations. If not, your organization risks being fined if during an inspection by the Inspectorate of the Ministry of Social Affairs and Employment (‘Inspectie SZW’ in Dutch) it is detected there is no full compliance with the law.

    Four main rules

    In principle, the ‘Arbeidstijdenwet’ states the following four main rules with respect to the maximum number of working hours permitted:

    • max. 12 hours per shift;
    • max. 60 hours per week;
    • for a period of four weeks, on average max. 55 hours per week;
    • for a period of 16 weeks, on average max. 48 hours per week.

    Besides rules on the maximum number of working hours, the ‘Arbeidstijdenwet’ also contains rules pertaining to the minimum rest time. The act differentiates between rest and a break.

    Rest is regarded the period between the end of one shift and the beginning of another. Any interruption during a shift is regarded a break.

    As stated above, a shift has a maximum duration of 12 hours. After those 12 hours, an employee is entitled to rest in between two shifts. (S)he must be able to rest for at least 11 consecutive hours. Only if the circumstances within the organization or the nature of the profession make it absolutely necessary may this rest time be shortened to 8 consecutive hours. Such instances include an important deadline which cannot be made without shortening the rest time in between shifts or malfunctioning equipment which must be repaired immediately.

    Furthermore, it is also permitted to shorten the rest time in between shifts by three hours once in a period of seven days. However, the following conditions apply:

    • the shortened rest time may never be less than 8 hours;
    • the employer must have compelling arguments to shorten the rest time.

    Context

    Take working hours and times into account during Ramadan

    If your organization employs Muslims who fast during Ramadan, this year from April 12 through May 12, it is advisable to take their fasting into account – where possible – when planning working activities. For one month, these employees do not eat, drink, smoke or have any sexual intercourse from sunrise to sunset, which will of course affect their performance. What adjustments can your organization make?

    Working hours

    If it is possible to temporarily adjust working hours or the working schedule of these employees, you give them the opportunity to work at more favorable times from their perspective. Do, however, observe the rules and regulations stated in the ‘Arbeidstijdenwet’ when adjusting working hours or times.

    One option is to have Muslim employees – who are thus only allowed to eat and drink at night – exchange their night shifts during Ramadan for day shifts with employees who do not fast. If this is not possible and a Muslim employee nonetheless must work a night shift, you can permit extra breaks to give him/her time to eat and drink.

    During day shifts, it may be annoying for employees who fast during Ramadan that they have to take a break. After all, they will not be eating and drinking and may prefer going home earlier over spending half an hour in the afternoon doing nothing. However, your organization cannot just allow an employee to continue working and go home earlier.

    According to the ‘Arbeidstijdenwet’, employees must take a 30 minute break after having worked for five and a half hours. You cannot deviate from this rule. Only if your organization gives employees longer breaks than the statutory minimum may you shorten their break time. In that instance, Muslim employees can exchange a portion of their break time for work time at the start of end of the workday.

    Supplementary rules

    Supplementary rules have been included in the ‘Arbeidstijdenwet’ for weekends, night shifts and Sundays. One of those rules states that every employee is entitled to have the weekends off work.

    However, a weekend here does not necessarily mean Friday evening to Monday morning. The law states that after a workweek (from Sunday 0:00 hrs. to Saturday 24:00 hrs.), an employee is entitled to at least 36 consecutive hours off work, with exceptions possible.

    It is assumed here that the employee does not have to work on Sundays, unless the nature of the profession makes this absolutely necessary. Examples include employees working in the healthcare or hospitality industry, fire fighters or police officers, etc. Such employees are entitled to at least 13 Sundays off work per year.

    Right to take a break

    The ‘Arbeidstijdenwet’ also states that an employee is entitled to a break if (s)he has a shift of over five and a half hours in duration. In other words, this statutory right to take a break does not apply if the employee only has to work half a workday.

    During a shift of over five and a half hours, an employee must have the opportunity to take a break of 30 consecutive minutes or, alternatively, two breaks of 15 consecutive minutes. A break must therefore be at least 15 consecutive minutes in duration. Three breaks of ten minutes is not permitted.

    Because shorter interruptions from work cannot be regarded ‘a break’, an employee must continue to receive wages. In other words, the time spent during such shorter interruptions must be regarded as time spent working. This is not the case for longer interruptions, such as a lunch break. The employee does not have to be paid for the time spent eating.

    Context

    Pregnant employee

    Different rules for taking a break apply to pregnant employees. They are entitled to extra time for breaks of at most one eighth the duration of their respective working hours per shift. This extra time is added to the regular time for breaks. For example, if a pregnant employee works an eight hour shift, she is entitled to one hour extra time for breaks. This brings the total time for breaks to one and a half hours.

    Getting paid for a break

    The ‘Arbeidstijdenwet’ says nothing about employees having to receive wages for the time spent on a break. After all, during a break employees aren’t working and thus not entitled to wages. You therefore do not have to pay employees for the time they spent on a break.

    This also means that you have to pay an employee for only seven and a half hours if (s)he has spent eight hours at work (i.e. the 8 working hours minus the 30 minute break). An employee who wants to be paid for eight hours must therefore work for half an hour longer. However, bear in mind that the collective labor agreement or an employment contract may contain agreements on the payment of wages during breaks which differ from this rule.

    For a shift of max. 12 hours, a 30 minute break isn’t that much. An employee working for more than 10 hours is therefore entitled to an additional 15 minute break. In total, this means the employee is entitled to a 45 minute break off work during his/her shift. Your organization may decide to give the employee in question one break of 45 consecutive minutes, two breaks of 30 and 15 consecutive minutes respectively (or the other way around), or three 15 minute breaks. Again, a break may never be shorter than 15 consecutive minutes.

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