The on-call worker as a flexible shell; 6 points to consider
If your company’s staffing requirements fluctuate widely, an on-call agreement can be a solution. With an on-call agreement, a flexible layer of employees can be formed and employees can be deployed for a varying number of hours each time.
There are various on-call agreements, such as a zero-hours contract and a min-max contract. The use of on-call agreements has some legal concerns.
1. Call and notice period
The standard rule is that the employee must call for work at least 4 days in advance, e.g. by e-mail or WhatsApp message. The notice period for a zero-hours contract is the same as the on-call period: 4 days.
2. Minimum payout of 3 hours per call
Every time you call up an employee, you must pay the employee a minimum of 3 hours’ pay. Even if he only works for 1 hour.
3. Exclude legal presumption of work scope
In principle, the employee can invoke the legal presumption of work scope. This means that the contract automatically changes in hours to the number of hours the employee has worked on average over the past 3 months. You can exclude this legal presumption in the first 6 months of the contract.
4. Notification and higher WW contribution
As an employer, you are now obliged to report on the payslip that the employment contract is an on-call contract, and you also pay a higher WW premium for on-call workers than for permanent employees.
5. Fixed scope of employment
You must make your employee employed by you on an on-call contract a written offer of a fixed scope of work after every 12 months. When calculating those 12 months, you must include the period of hiring and/or legal predecessors.
The written offer for the fixed scope of work must be at least equal to the average scope of work in those previous 12 months. It is up to the employee to respond to it with a refusal or acceptance of the hours offer within one month.
Did you fail to make the offer or make it too late, or you cannot prove that the offer made was refused? Then, even after a longer period of time, your employee can still claim the salary that was lost as a result from that thirteenth month. The employee has then not worked that difference in hours, but still has a wage claim to recover from your company.
6. Duty to report unpredictable work pattern
Since 1 August last, the Transparent and Predictable Terms of Employment Act has come into force under a European Directive of the same name. This law stipulates that in case of an unpredictable work pattern, the employer must agree on a reference period (days and hours) during which the employee can be called up. If the employer does not comply with this or the employee is called outside the framework, the employee may refuse the call.
Need help drafting an on-call contract?
So far, the main points of interest in an on-call contract. As an entrepreneur, do you want to use on-call employees and need help drafting a watertight contract? Contact Richard Ouwerling, lawyer at LVH Advocaten in Rotterdam for more information.
