Call agreement: general introduction
An on-call contract is an employment contract with a flexible scope of work. This means that the employment contract states that the number of hours an employee can be deployed in a certain period of time may vary. The advantage of on-call contracts for the employer is that it only has to pay its employees for the hours that the employee has actually worked. With the introduction of the Labour Market in Balance Act (WAB), a number of rules have been introduced with regard to on-call contracts. The reason for this tightening lies in the fact that on-call employees are seen as the most vulnerable employees. The WAB has attempted to change this. Because it is important for employers to comply with the law, we will set out below the (tightened) regulations relating to on-call contracts.
Definition of the on-call agreement
Since the introduction of the WAB, there has been a statutory definition for the on-call agreement (Section 7:629a (9) of the Dutch Civil Code). This reads as follows:
"A convocation agreement shall be deemed to exist if:
- The scope of the work is not laid down as one number of hours per unit of time of:
- not more than one month; or
- not more than one year and the employee's right to remuneration is spread evenly over that unit of time; or
- under Article 628(5) or (7), or Article 691(7), the worker is not entitled to pay determined by reference to a period of time if he has not performed the work agreed."
If there is an on-call contract (an employment contract that meets the above requirements), supplementary arrangements apply.
Types of on-call contracts
There are three types of on-call agreements. First, the zero-hours contract. In the case of a zero-hours contract, the employee only works if he is called upon to do so. Another form is the min-max contract, in which the employee has a fixed number of minimum and a fixed number of maximum hours. For example ten-30. The employee is then in any case entitled to be paid ten hours per week. If he is called up for more than ten hours a week, he only has to be paid for the hours that he has actually been present. The employee does not have to come for more than the maximum number of hours. The last form is the preliminary contract, which is not yet an employment contract. It is a framework under which - every time the employee is called upon - an employment contract is created. The employee is not obliged to respond to a call under a preliminary contract.
Call term
First of all, employers have a long notice period. This means that the employer must contact the employee at least four days prior to the day on which he wishes to schedule the employee. This call must be made in writing. This also includes sending an email. If the call deadline is not met, the employee need not respond to the call.
Withdrawing the call
To prevent abuse, the law also contains an anti-abuse provision. This prevents the employer from calling employees and changing this call later. If the employer withdraws or modifies part of the hours for which the employee was called, the employee must still be paid for these hours.
Entitlement to fixed working hours
If an on-call worker has been employed for twelve months under an on-call contract, the employer is obliged to offer the employee a contract with a fixed scope of work. The number of hours offered must be at least equal to the average number of hours that the employee has worked in the past 12 months. This offer must be made within one month of the end of the 12th month that the employee has been employed. If the employer fails to make such an offer the employee shall be entitled to salary from the day on which the employer should actually have made the offer. If an employee does not accept the employee's offer (the employee is not obliged to do so), the employee can continue to be employed as an on-call worker. After twelve months, the employer will have to make another offer for a contract with a fixed scope of work.
Payment of a minimum of three hours
If you employ on-call workers, it is certainly advisable to call them for at least three hours. If you do not do this, and have the on-call workers on duty for one or two hours, you will still have to pay them for three hours.
Term of termination
For on-call workers, a shortened termination period applies. The notice period is equal to the notice period for convocation, i.e. four days. The purpose of this reduced notice period is that employees have the possibility to accept a job with a fixed scope of work without being hindered by the notice period of an existing on-call contract.
Chain arrangement
An on-call contract also applies to the chain arrangement. This means that an on-call contract that has had three fixed-term contracts within 36 months is entitled to an indefinite contract. An indefinite contract can also take the form of an on-call contract.
In conclusion
At Legal Q, we have a lot of experience in drawing up on-call agreements. Moreover, we are well aware of all the rules involved. Feel free to contact us if you have a question about an on-call agreement or if you would like to take on an on-call employee and have an on-call agreement drawn up for you.