September 22, 2018

On-call employees

By Jan Dop.

Many enterprises work with on-call employees. It is advantageous for employers because they can adapt their business operations to the developments in the market. But there are also benefits for on-call employees: they are free to work more or fewer hours and it can also be a step towards a permanent contract. What kind of contracts are there for on-call employees? What are the rights of on-call employees and which obligations do employers have to meet?

There are three types of on-call contracts, zero-hours contracts, min.-max. contracts, and pre-agreements. However, since the introduction of the chain rule the latter hardly exist anymore and will not be dealt with in this blog.

Zero-hours contracts

A zero-hours contract is an employment contract and therefore there are obligations for both employers and employees. Employers must, for instance, call upon employees when there is work and workers are in principle required to perform work when called upon. In principle, employers are required to continue to pay salary even if there is no work or if no work can be performed due to other reasons at the risk of the employer. In addition, the following requirements apply:
The obligation to continue to pay wages in the event of sickness is only applicable if the on call employee gets sick during the on-call period. If the on-call worker gets sick outside the on-call period, the obligation does not apply.

After three months of having been called upon regularly, the employee can make a “legal presumption of the scope of work”. This means that a contract of employment exists which is based on the average hours of work performed per month. It is up to the employer to prove the contrary.

Min.-max. contract

In this contract a minimum and maximum number of hours are agreed upon between employer and employee. The minimum hours are also referred to as “guaranteed number of hours”.
With regard to a min.-max. contract the following requirements apply:
On-call employees have to be paid for the guaranteed number of hours, even if the hours were not worked.
If an on-call worker is not able to perform work due to sickness, the obligation to continue to pay wages during sickness is applicable for at least the guaranteed number of hours.
After three months, the employee can make a “legal presumption of the scope of work”. This means that a contract of employment exists based on the average hours of work performed per month. It is up to the employer to prove the contrary.

Minimum on-call period
Regarding all on-call contracts, each time the employees are called upon they are entitled to a salary for at least three hours of work. Even if the employees have worked for a period of less than three hours. This requires however that the employment contract does not contain a clear scope of work, or that the scope of work is less than 15 hours per week. Min.-max. contracts are subject to the condition that the guaranteed number of hours is less than 15 hours per week. This may have been deviated from in a collective agreement.

Obligation to continue to pay wages excluded
In principle, the employer is required to continue to pay wages if the employee is unable to perform work due to reasons at the risk of the employer, such as cancellation of an order, technical problems, or if a company is snowed in. In an on-call contract the obligation to continue to pay wages also applies if the employer can provide work but does not make a call upon the employees.
The employer can exclude this obligation to continue to pay wages in the contract. For zero-hours contracts this means, for instance, that the employer is not required to continue to pay wages if there is no more work, regarding min. max. contracts, this means that the guaranteed number of hours don’t have to be paid, only the hours worked have to be paid. The rule that three hours per call have to be paid will remain in effect.
The obligation to continue to pay wages can be excluded for a maximum period of six months, but in collective agreements may be laid down the possibility of extension. This is only possible if the activities are carried out occasionally and not restricted in scope. For instance, if employees are only called upon in peak periods or to substitute employees that are temporarily absent.

Temporary contracts
On-call contracts, in whatever form, are usually temporary contracts. Since the introduction of the Work and Security Act, stricter rules have been applied regarding the probationary period, notice period, chain rule, and non-solicitation clause.

Future
Despite a tightening of the employers’ obligations in the Work and Security Act, according to the cabinet, on-call employees are still in a precarious position. The Labour Market in Balance Bill therefore contains a number of measures meant to ensure a strengthening of the position of the on-call worker:
Employees must be called upon at least 4 days in advance by the employer and are not required to be constantly available. In collective agreements, the on-call period may be restricted to 1 day.

On-call employees are entitled to wages if the call is cancelled.
After 12 months, on-call employees must be offered a contract for a fixed number of hours.


Jan Dop

About the author:

Jan Dop,  LL.M. Jan is Head of our Embassy Desk, that serves Embassies, Consulates, diplomats and expats. He has been a lawyer at Russell since 1995, and became a partner in 2011. 

Jan Dop assists national and international enterprises in all facets of their day-to-day business operations. He specializes in personnel, real estate and issues involving public authorities.

@: jan.dop@russell.nl
t: +31 20 301 55 55

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