The Balanced Labour Market Act (“Wab”) has now been in place for over a year. Among other things, the Wab contains provisions to strengthen the legal position of on-call workers. Earlier, we gave an overview of these new regulations in our Wab update. What was the situation again?
On-call workers are (among others) employees working on the basis of a zero-hours contract or a min-max contract. The law does not define the term “on-call worker”. As of 1 January 2020, the law does include the definition for on-call contract. It exists if:
o The scope of work per month is not unambiguously defined; and
o The employee is not entitled to wages if he does not work.
The Wab includes three measures to strengthen the legal position of on-call workers:
I. The on-call period. On-call workers do not have to comply with an employer’s call if (i) the employer calls the on-call worker less than four days (or less than 24 hours if agreed in the collective agreement) in advance, (ii) a call is not made in writing or electronically, or (iii) the call is made without specifying the times for the call. Moreover, the on-call worker is entitled to continued payment of wages for the period for which he has been called if the employer withdraws (i) part or all of a call less than four days in advance (or 24 hours if agreed in the collective agreement), or (ii) changes the times of the call. As a result, an on-call worker may have a double pay entitlement when changing times of call.
II. The mandatory offer of a fixed scope of work (set out below).
III. The reduced notice period on-call worker. On-call employees working under a zero-hours contract can terminate their employment contract – if an interim notice clause is included in the employment contract – subject to a notice period of only four days.
THE MANDATORY OFFER OF A FIXED SCOPE OF EMPLOYMENT
After every 12 months that the employment contract has lasted, the employer must make an offer to the on-call worker for a fixed scope of work in the 13th month. This offer must be equal to the average labour scope of twelve months preceding it. So if an on-call worker has worked a total of 832 hours in these 12 months, the employer should offer a contract for 16 hours per week (832/52 = 16).
If the on-call worker accepts the employer’s offer, there is no longer an on-call contract. If the on-call worker does not accept the offer, the on-call agreement continues.
If the employer does not make an offer for a fixed scope of work, the on-call worker is entitled to pay for the hours for which the offer should have been made. On-call workers have five years to bring this wage claim. A recent ruling by the Maastricht subdistrict court shows that not offering a fixed scope of work can be costly.
WHAT IF YOU FORGOT TO MAKE AN OFFER?
In December, the Maastricht subdistrict court ruled on the employer’s failure to offer an on-call worker a fixed scope of work.
In this case, the on-call worker had been working under an on-call contract since 6 March 2017. Employer failed to offer – in accordance with the Wab – a contract for a fixed scope of work in January 2020 (or thereafter). Due to the corona crisis, the on-call worker was not called by the employer in the months of March and April 2020. In August, the on-call worker asks the employee by email why she was not offered a contract for a permanent work scope. This is followed by a conversation with the employer and then the employer calls the on-call worker that she would no longer be called due to dysfunction. The on-call worker protests this and makes herself available for work.
The on-call worker claimed payment of salary from February 2020. The subdistrict court found that there was an on-call contract and that the employer should have made an offer for a fixed scope of hours after 12 months.
The employer argued that this offer was made verbally, but that was not sufficient, according to the subdistrict court. After all, it follows from the law that there are requirements for this offer for permanent work scope, including the requirement of making a written or electronic offer.
Here, the employer failed to make an offer or made an offer that did not meet the requirements. This means that the employer must pay wages during the period when it was required to make an offer for a fixed number of hours. Wages are determined according to the number of hours during which the employer was obliged to make an offer to the on-call worker. Such as, for example, the aforementioned 16 hours per week.
This obligation therefore applies even if the on-call worker did not work those hours because the employer had not called her. The subdistrict court awarded the wage claim with statutory increase of 50% and statutory interest.
So keep a close eye on when an offer must be made and thus avoid a possible wage claim from the on-call worker.
STARTING DATE FIXED SCOPE OF WORK
It does not follow from the Wab when the fixed scope of work should take effect. To put an end to this lack of clarity, the government has regulated this in the Collective Labour Act 2021.
The fixed scope of employment should start no later than two (2) months after the employment contract has lasted twelve (12) months. So on the first day of the fifteenth (15th) month. The employee’s acceptance period is one month.
These regulations will take effect from 1 July 2020.
IN SHORT
If on-call workers are used, it is important to offer a fixed scope of work to the on-call worker in a timely and proper manner. This prevents the on-call worker from filing a wage claim for hours she did not work after some time has passed.
Given this mandatory offer, the question is then what is the optimal duration of the first on-call contract. And whether there are not better alternatives such as the annual hours model. Should you want to exchange views on this, feel free to contact us. Even if, for instance, you have forgotten to make a fixed-term employment offer (in time).
Of course, we would also be happy to help with any further questions on this subject.
