On-call contracts: what are your options?

When you offer an employment contract without fixed working days or hours, it is referred to as an ‘on-call contract’. That means you are the employer, and you do not hire the employee from an external party, like a temping agency.

There are three types of on-call contracts

• Zero-hours
• Min-max
• On-call contract with a preliminary contract

Zero-hours contract

If you do not know how many hours you will need an employee per week, then a zero-hours contract offers the least financial risk. In a zero-hours contract, you do not agree to a specific number of hours. You can call the employee to work whenever you have work for them to do. You and your employee can agree to either a temporary or a permanent zero-hours contract.

The standard rule is that you must inform the employee at least 4 days in advance when you have work for them. Check your Collective Labour Agreement (CAO) to see if there are any specific agreements about shorter notification periods, such as (at least) one day. Make good agreements about how to reach the employee.

Pros

• You can call on the employee when you need them.
• In principle, you do not pay the employee wages when they do not work.

Cons

• Every time you call up an employee, you must pay them at least 3 hours in wages. Even if they only work for one hour.
• The employee may submit an appeal based on the presumption of working hours (in Dutch). That means the number of hours in the contract automatically changes to the number of hours that the employee has worked over the past three months.

Example: your employee has a contract for eight hours per week, but has worked an average of 10 hours per week over the past three months. In that case, the employee can request a change to the employment contract. If you refuse their request, then you must prove that the overtime was of a temporary nature.

• In some cases, you may be required to pay the employee’s wages when they are sick.
• You pay a higher unemployment premium for on-call employees.
• You can only end a zero-hours contract before the end date if your CAO includes specific agreements for the notification period. The notification period for a zero-hours contract is the same as the call-up period: 4 days.

Min-max contract

If you want to be sure that your employee is available for a minimum number of hours per week, then a min-max contract may be a good option. You and your employee can agree to a minimum and a maximum number of hours, on an on-call basis.

Calculate the number of hours you need, and sign a contract for less than that number of hours. You will always have to pay at least this minimum number of hours, even if there is less work.

Example: if you think you will need an employee for 10 hours per week, agree to a contract for eight hours. You can then pay out the overtime hours for the agreed-upon hourly wage.

With a min-max contract, you must call up the employee at least 4 days in advance.

Pros

• You can count on the employee being available for a minimum number of hours per week. That is not the case for a zero-hour contract.
• The hours are flexible, so you can call up the employee when they are needed.
• You do not pay the employee for hours that they do not work, up to the threshold of the minimum hours.

Cons

• The on-call employee is not required to work if you call them less than 4 days in advance, unless the CAO says otherwise.
• You must always pay for the minimum number of hours, even if the employee does not work all these hours.
• If you cancel the call within 4 days, or change the work times, then the on-call employee is entitled to pay for the hours they were initially called up to work.
• You pay a higher unemployment premium for on-call employees.
• You must continue to pay the employee if you do not call them to work, if they have been employed for more than 6 months. The amount you have to pay depends on the type of contract: zero-hour, min-max of an on-call contract with a preliminary contract. Some CAOs say that this period may be longer than 6 months. But this is only allowed if the work is incidental in nature, and does not have a fixed number of hours.

On-call contract with a preliminary contract 

If you are not sure if you will need an on-call employee, then an on-call contract with a preliminary contract (in Dutch) may be a good option. This contract begins only when you call up the employee, and they accept the assignment. Until then, the employee does not have an employment contract with you. You have agreed to the terms of employment, and signed a declaration of intent. The declaration of intent states that you plan on working together at some point.

Pros

• You are not required to call up the employee to work.
• You are not required to pay out at least 3 hours in wages if the on-call employee works less than 3 hours, as in a zero-hour contract.
• You only pay wages for the hours worked.

Cons

• The employee has the right to decide not to work.
• You pay higher unemployment premiums for an on-call contract.

Rules for on-call contracts

The following rules apply to all zero-hour, min-max and on-call contracts without a preliminary contract.

Predictable work pattern

Employers must specify in the employment contract the days and times when the employer can call them up. Employees can turn down requests that come in outside these days and times.

Try-out period

The length of the try-out period depends on the term of the on-call contract.

• Less than 6 months: no try-out period
• Between 6 and 12 months: one month try-out period
• Two years or more: two months try-out period
• No calendar date: one month try-out period

Please note: your collective agreement may be different, and it may allow a longer try-out period for a contract of more than 6 months.

Extension

The ‘chain rule’ says that after 3 consecutive employment contracts, the employee is automatically entitled to a permanent contract. You are also required to offer the employee a permanent contract if they have had more than one temporary contracts over a period of more than 3 years.

Balanced Labour Market Act (Wet WAB)

Has an on-call worker worked for you for a year? Then according to the Wet Arbeidsmarkt in balans (Balance Employment Market Act, WAB) you have to make them an offer for a fixed number of hours within a month. This must be at least the average number of hours they worked for you per week over the preceding year. If you offer a lower number of hours, or do not make an offer, then the employee is entitled to pay for the average number of hours they have worked per week over the past year. The employee also has 5 years to submit this demand.

For example: an on-call employee has an on-call contract for 2 years, and has worked an average of 10 hours per week for the first year. After 12 months, the employer does not offer a contract for 10 hours per week, but one for 6 hours one week and 8 hours the next. That makes the average number of hours per week in the second year 7 hours per week. In that case, the employee has 5 years to demand payment for the extra 3 hours per week.

Collective labour agreement (CAO)

Your CAO may have different agreements for on-call employees. For example, about continued payment of wages, or shorter call-up notification periods. So, you should check your CAO to see which rules apply to your situation.