A company recently established in the Netherlands may have a need for flexible staff. In this article we will outline the company’s (contractual) possibilities to employ on-call staff. The fact is that, on the one hand, these contracts offer flexibility for the employer, but, on the other hand, the legislator has also strived to give security to the worker.
Various kinds of on-call agreements
There are three kinds of on-call agreements. First of all, the preliminary agreement on the basis of which an agreement for a definite period of time will arise per call. Once an employee has been called three times, an employment agreement for an indefinite period of time will arise by operation of law. This is why such an agreement is not very practical.
Secondly, the on-call agreement may have the form of an employment agreement in which an indication is given of the working time by providing an average working time or a minimum and a maximum number of working hours. This agreement is sometimes also called a min/max contract. In the event the employee has this type of contract he will in any case be entitled to wages over the minimum number of hours. To the extent that he works more hours pursuant to calls made by the employer, the employee will receive more wages on a pro rata basis. Especially in cases in which the minimum number of hours for which the employer wants to call the employee is not fixed or if there are weeks in which no work at all is performed, this kind of agreement is not the most logical choice.
To conclude, the on-call agreement may have the form of an employment agreement with postponed duty to perform, also known as a zero hours contract. No position is taken as to the working time and the working time will be determined by the calls, if any, of the employer. The employer is not obliged to call the employee for a specific number of hours. Compared to the preliminary agreement, the employment agreement with postponed duty to perform implies more obligations. The employee may be obliged to act on the call, with the variation that he may only refuse the work for compelling reasons. The employer may be obliged to more or less call the employee regularly. The employee has committed himself to perform work against wages in the employment of the employer, but the obligation to actually perform work and the corresponding entitlement to wages only exists when the employer calls him and for the duration of the call. The employee may be obliged to respond to calls, unless this cannot be expected of him in reasonableness (for instance because the employer called him at the last moment).
From the above it follows that there are various advantages and disadvantages on each of the company’s (contractual) possibilities to employ on-call staff.