The Netherlands: On-call workers and changes in employment law with as from 1 January 2020

As from 1 January 2020, Dutch employment law will be amended on a few points as a result of the Dutch Balanced Labour Market Act (Wet arbeidsmarkt in balans) entering into effect. This includes amendments in respect of on-call workers.

An on-call agreement exists when:

• the working hours are not determined as one fixed number of hours per month or per year;
• the entitlement to wage is not being spread evenly over that period of time.

This means, among other things, that employees working on the basis of a zero-hours contract or a ‘min-max’ contract (meaning a contract with variating working hours between a minimum and a maximum) are deemed to be ‘on-call workers’. In these cases, an employee has no clarity about the amount of working hours, which causes uncertainty about its income and the hours on which he or she has to work. The legislator wants to strengthen the legal position of the on-call worker, because, according to the legislator, they face (too) much uncertainty about their income due to the varying working hours.

Current protection on-call workers

On-call workers are currently protected by (i) the legal presumption and (ii) the minimum entitlement to three hours’ pay for each call.

1. 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 legal presumption means that the working hours in one month are presumed to be equal to the average working hours per month over the three preceding months.
2. Employees who have been contracted to work less than 15 hours per week and for who 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 protection on-call workers

As from 1 January 2020, Dutch 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 on-call workers

• 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 labour 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 labour 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 after the 12 month period, 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 withdrawn hours. 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 five years to file a claim for 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. In that case, another offer must be made after the next 12 month period (if an employment contract is still in force at that time). If the employee does accept the offer, the number of working hours will be amended.

Measure III: Reduced notice period for on-call workers

• On-call workers working on the basis of a zero-hours contract may terminate their employment contract subject to a notice period of only four days. This is subject to the condition that the employment contract contains an interim termination clause

What does this mean for the retail sector?

In the retail sector, companies regularly work with on-call workers, and of course the above-mentioned rules also apply to these on-call workers.

The legislator significantly limits the possibility of using on-call workers on a long-term basis by means of the above measures. 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 on the basis of an on-call contract for more than 12 months. In addition, some employers will have to reconsider their schedules and method of calling in on-call workers.

Also, the collective labour agreement (CLA) for the retail sector (non food) will most likely need to be amended. The current CLA has a provision that makes it possible to agree upon flexible working hours. The provision states that the amount of flexible hours worked in the preceding 12 month period, does not automatically lead to an adjustment of the agreed working hours. As from January 2020, this will no longer be possible.

Karol Hillebrandt
Palthe Oberman