Traditionally, in the case of so-called “on-call contracts”, an employer must always call on an employee for a minimum of three hours.  If the work involved requires less time, the employee is nevertheless always entitled to three hours of wages (Section 7:628a of the Dutch Civil Code). In some situations this may be ambiguous, as was the case with a cab driver who carried out so-called “extended cab rides”.  Within a three-hour period, the cab driver only worked three times for half an hour. The question was whether he was entitled to three hours of wages or to three times three hours.

The Dutch Supreme Court issued a ruling on this on 3 May 2012. In the Supreme Court’s view the text and purport of the said section mean that if the employee is called upon to work several times a day, he is entitled to a minimum of three hours for each separate period of work because the interruptions between the different periods of work cannot be classified as regular work breaks.

This decision caught some media attention, but is in fact in line with the law and previous case law. In the matter of the cab driver, the employer tried to mitigate the risk of not always having work available by calling on the employee for half an hour on each occasion. This solution does not work, because the said section serves precisely to offer on-call workers greater security. What is more, an employee is not expected to bear his employer’s business risks (or more of them).

It should be remembered in this regard that this arrangement applies only if an on-call contract meets the requirements of Section 7:628a of the Dutch Civil Code, i.e. that the employee works less than 15 hours a week and that the times at which the employee is called upon are not fixed beforehand. Thus, recurring half-hour periods of on-call work would be possible if their exact times are fixed and known to the worker beforehand.

Source CMS Newsflash Employment & Pensions, 2013, issue 4