Changes in employment law concerning on-call workers with effect from 1 January 2020
With effect from 1 January 2020, the employment law will be amended in some respects as a result of the Dutch Balanced Labour Market Act (Wet arbeidsmarkt in balans). This includes amendments in respect of on-call workers. On-call workers include employees working on the basis of a zero-hours contract or a ‘min-max’ contract (meaning a contract with varying working hours between a minimum and a maximum). The legislator wants to strengthen their legal position, because they face (too) much uncertainty about their income due to the varying working hours.
Current on-call workers protection
On-call workers are currently already protected by, among other things, (i) the legal presumption (section 7:610b of the Dutch Civil Code) and (ii) the minimum entitlement to three hours’ pay for each call (section 7:628a of the Dutch Civil Code). First of all, employees who have been employed for at least three months and who (structurally) work more than their agreed working hours may invoke the legal presumption: the working hours in one month are presumed to be equal to the average working hours per month over the three preceding months. Secondly, employees who (1) have been contracted to work less than 15 hours per week and (2) for whom the times at which the work is to be performed are not fixed, are entitled to a minimum payment of three hours for each call, even if, for example, they have been called in for one hour.
Additional on-call worker protection
With effect from 1 January 2020, the law will provide additional protection for on-call workers. This protection will apply in addition to the rights of on-call workers discussed above. The amendments can be summarised as follows:
Measure I: The notice period for calling in staff
- On-call workers will not be required to respond when called to work by the employer if (i) the employer calls the employee less than four days (or less than 24 hours if agreed by collective agreement) in advance; (ii) a call has not been made in writing or was done electronically; or (iii) the call has been made without specifying the times at which the work is to be performed. The planned working day cannot be taken into account when calculating the period.
- If the employer withdraws a call less than four days in advance (or less if agreed by collective agreement) (i) in part or in full; or (ii) changes the times of the call, the employee will be entitled to continued payment of wages for the period for which he has been called in.
Measure II: The obligatory offer
- Once an employment contract has been in force for a period of 12 months, the employer must, within one month, offer the employee a fixed number of working hours. The offer must be equal to the average number of hours that the employee performed work in the previous 12 months, including any hours of illness and hours withdrawn. If the employer fails to make an offer, the on-call worker will be entitled to wages for the hours for which the offer should have been made. Employees will have 5 years to bring an action to recover back wages.
- Once the offer has been made, the employee will have one month to decide whether or not to accept the offer. If the employee does not accept the offer, the on-call employment contract may be continued. However, in that case, another offer must be made in the following year (if an employment contract is still in force at that time). If the employee accepts the offer, the number of working hours will change.
Measure III: Reduced notice period for employees
- On-call workers working on the basis of a zero-hours contract may terminate their employment contract as from 1 January 2020, subject to a notice period of only four days. This is subject to the condition that the employment contract contains an interim termination clause.
The legislator significantly limits the possibility of using on-call workers on a long-term basis by means of the above measures. This will require a great deal of effort on the part of employers. In January 2020, for example, they will have to make an offer for a fixed number of working hours to employees who, at that time, have been employed for more than 12 months. In addition, some employers will have to reconsider their schedules and method of calling in on-call workers.