New rules regarding on-call workers

The Dutch Balanced Labour Market Act (Wet arbeidsmarkt in balans (Wab)) brought about drastic changes to the rules regarding on-call workers as per 1 January 2020. These changes are intended to provide on-call workers with more income security and to combat unnecessary availability (‘being on-call’).

With effect from 1 January 2020 the following applies:

Definition of the on-call agreement

The definition of ‘on-call agreement’ covers the following contracts: zero-hours contracts, min/max contracts and contracts in which the obligation to continue to pay salary is excluded for the initial six months of the employment contract if there is no work available.

Notice for on-call work

Employers must ask the on-call worker to come to work, in writing or electronically, at least four calendar days in advance, not counting the scheduled working day. If the employer fails to observe this four-day term, the on-call worker does not have to respond to the request. If the employer withdraws the notice (in full or in part) within four days before the start of the work, or changes the working times of the call, the on-call worker will be entitled to a salary for the full period to which the notice for on-call work related. This four-day term may be reduced to 24 hours under a collective labour agreement.

Reduced notice of termination period for on-call workers

On-call workers are entitled to a reduced notice period, to enable them to terminate the contract quickly if they have found a job for a fixed period of work. This notice period is four days, or less if so agreed under a collective labour agreement. The statutory notice period for employers remains unchanged.

Obligation to offer fixed number of working hours

After an on-call worker has been employed for twelve months, the employer is obliged to make him/her an offer, in writing or electronically, of a fixed amount of working hours equal to the average number of hours the on-call worker has worked during those last twelve months. Holidays, illness and withdrawn working hours are also to be included in the calculation. Employers with a need for variable deployment may make an offer for a fixed amount of working hours on an annual basis, with a fixed monthly salary. Under such a contract, the number of working hours per month may vary, but the employee will receive the same salary each month.

Please note that this obligation also applies to on-call workers who, in January 2020, have already been employed for more than twelve months! This means that their employer needs to make them an offer for a fixed amount of working hours before 1 February 2020. If the employer fails to do so, the on-call worker will be entitled to the salary he has not received since the time the employer should have made the offer, regardless of whether or not the on-call worker was available for work at that time.

One month acceptance period

The on-call worker has one month to accept or decline the offer. If the offer is accepted, he/she will start working a fixed number of hours, but the scheduling hours will remain variable and he/she may still be requested by the employer to work extra hours. The on-call worker may also decline the offer, for example because he/she wishes to maintain flexibility in his/her work. In that case, nothing will change and the on-call contract will continue to apply. However, every twelve months the employer will again be obliged to offer a fixed amount of working hours.

Conclusion

The Wab gives on-call workers more income security but increases the administrative burden for employers. The new rules for on-call workers must be applied by employers from today and engaging on-call workers will require more organisation.

Anneke Pelser (ap@clintlegal.com / +31 20 820 0330)