On-call contracts Laws and regulations

24 jun, 2016

There are different names for on-call contracts, the content of the contract determines what kind of contract it really is. All contracts can be traced back to one of two kinds of contracts that exist within Dutch law: an on-call contract with a preliminary agreement and an employment contract with postponed duty to perform (MUP). Although both encompass the flexible hiring of staff, there is a crucial difference between the two.

On-call contract with preliminary agreement
An on-call contract with a preliminary agreement is the most ‘free’ contract. As an employer, this contract does not force you to actually call up the employee when there is work and the employee does not have to heed the call. However, if the employee accepts the call, an employment agreement immediately comes to existence, but just for this one specific moment. This is also the downside to the contract: if the employee answers the call for a 4th time, a permanent appointment automatically arises. Next to that, the employer pays the actual number of hours worked, but a minimum of 3 hours per call and the period agreed in advance (article 7:628a BW, Dutch law).

Employment agreement with postponed duty to perform
This is an agreement for either a permanent or temporary appointment during which the employee declares to be available for work. An on-call clause is included in this agreement; the employer is obliged to call the employee as soon as there is work and the employee is obliged to accept he work, unless he/she has compelling reasons to turn the call down (article 4:2 ATW, Dutch law).

The employee is entitled to salary for the actual hours worked with a minimum of 3 hours per call (article 7:628a BW). However, the employer can include an exception in the employment agreement in the first 6 months. This exception encompasses that in these first 6 months, the employee is entitled to payment only for the actual hours he or she has worked. The collective agreement may deviate from this in a positive sense, either in favour of the employee or the employer. In addition, the employee has the right to holiday pay, holidays and continuation of payment of wages when ill, based on the hours scheduled.

Examples of this type of agreements are: a zero-hour contract and the min-max contract. The min-max contract includes a minimum number of hours, which also have to be payed, and a maximum number of hours the employee can be called upon, to be agreed upon in advance.

Obligation to call
An obligation to call arises when the employee can reasonably assume that, during a specific period in time, there is (more) work for him or her. An example of this is seasonal work. Additionally, after three months of working, a legal presumption may arise (article 7:610b BW, Dutch law). This means that the employee presumes that the work encompasses a number of working hours equal to the average number of hours the employee worked in the last three months. The employee is then obliged to pay for these hours, even if this has not been established in the contract. The employee can appeal to this presumption and in that case it is up to the employer to refute this claim. Finally, in the long term the employee will be entitled to the same wages as a contract worker who performs the same tasks.

Warning: The so-called chain-provision (ketenbepaling) also applies in the case of these employment agreements. Additionally you have to adhere to article 7:611 BW (Dutch law) on the obligations of employers.

Collective labour agreement
Does any collective labour agreement apply to your organisation? In that case it might be good practise to consult this agreement as to what has been agreed with regard to on-call employees.

Illness
As an employer, you are obliged to continue payments of wages in certain cases when the employee is ill. Below you find a table with regulations per agreement.

 On-call employee with preliminary agreementZero-hour contractMin-maxcontract
Ill during availability periodAgreed number of working hours. As a result, obliged to pay at least 70% of the wages for the agreed number of hours.*Agreed number of working hours. As a result, obliged to pay at least 70% of the wages for the agreed number of hours.* 

 

 

Agreed number of working hours. As a result, obliged to pay at least 70% of the wages for the agreed number of hours.*

Stays ill after availability periodThe employment agreement has been terminated. As a result, there is no obligation to pay any wages.After the availability period has run out, there are no more agreed working hours. As a result, there is no obligation to pay any wages.
Ill outside of availability periodNo employment contract and therefore no wages.No call and therefore no wages.

* But at least minimum wage.

Sharon Vervloet

Payroll Consultant

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