Flexi-insecurity and the regulation of zero-hours work in the Netherlands

One of the main goals of the Dutch Act on the Employment Contract of 1907 was to offer protection to day labourers who sold their labour on a daily basis as ‘entrepreneurs of themselves’. Under the Act, these workers were classified as ‘employees’, which made them less dependent on market forces and the whims of their employer. One may wonder, however, whether the (lack of) employment protection of the 19th century day labourer differed much from that of todays’ employees performing zero-hours work who, like those day labourers, have to cope with unpredictable working days and hours. This article seeks to answer this question through detailed analysis of the regulation of the zero-hours employment contract under Dutch labour law. In this context it will also address the impact of EU labour law on the regulation of zero-hours work arrangements. Starting with a historical perspective, it is shown how the Dutch legislator’s aim to create a new balance between ‘flexibility and security’ has strengthened the employment protection of zerohours workers, which to some extent gives them advantages over dependent self-employed workers. On the other hand, however, the article reveals how subsequent legislative reforms have legally authorised zero-hours employment contracts and, as such, have legitimised zero-hours workers’ insecure employment conditions. In addition, while both the Dutch and the EU legislator have recognised that the balance between flexibility and security has tipped too much in favour of flexibility, this article argues that new instruments, among which is the EU Directive on Transparent and Predictable Working Conditions (2019/1152/EU), fail to restore this balance sufficiently. It is concluded that instead of achieving the EU policy objective of flexicurity, current employment relations in the Netherlands seem to reflect a state of flexi-insecurity. Before I continue, it should be noted that zero-hours work is a type of work which is not defined in Dutch labour law. It is usually considered a sub-category of on-demand work in that zero-hours workers unlike, for example, workers on a min-max contract, lack guaranteed working hours.