Employers have to pay on-call workers who are called to work several times on one day a minimum of three hours per call. This may result in double pay for the on-call worker.
A Minimum of Three Hours Pay For a Call
Pursuant to Section 7:628a of the Dutch Civil Code (“DCC”), each time an on-call worker is called to work he is entitled to a minimum of three hours’ pay. At least one of the following conditions must be fulfilled here:
- The employee has a contract for less than fifteen hours per week in which the times during which the work must be performed are not specified unequivocally.
- The employer and the employee have made no arrangements about the number of hours to be worked, for instance in a zero hours contract.
The question that was presented to the Dutch Supreme Court is how the guaranteed remuneration pursuant to Section 7:628a DCC should be calculated if an employee is called several times on one day for periods of less than three hours (each).
The claimant (the “On-Call Worker”) worked as a taxi driver for a taxi company (the “Employer”) twelve hours per week without fixed working hours. The On-Call Worker claimed payment of back wages on the ground that pursuant to Section 7:628a DCC a minimum of three hours’ wages would be due for each consecutive period that she drove. The On-Call Worker took one day with the following schedule as an example:
- From 7:50 until 10:20
- From 10:35 until 11:05
- From 11:35 until 12:05
- From 14:05 until 14:50
- From 15:45 until 17:50
- From 19:15 until 20:25
The On-Call Worker argued that she should be paid a minimum of three hours’ wages for each ride. Since she was called six times on the day in question, this would mean that she was entitled to six times three hours’ wages. The Employer did not agree because this would mean that certain periods would be paid double.
The Supreme Court
The Supreme Court ruled that Section 7:628a DCC entails that an employee who is called several times on one day to perform work is entitled to wages for a period of a minimum of three hours for each separate period of work. A work interruption that is not a normal break is considered as a new period of work, which entitles the employee to the remuneration of a minimum of three hours guaranteed in Section 7:628a DCC. The same is true if this results in the employee who is called several times on one day receiving “double” pay for certain periods of that day.
In this case, this means that the On-Call Worker in the example above was entitled to 18 hours although she had in fact only worked 7,5 hours and had only been available for work for 12 hours and 35 minutes.
The Supreme Court justified this interpretation by pointing out that Section 7:628a DCC means to ensure that employers organize work in such a way as to avoid as much as possible the occurrence of shifts or periods of less than three hours in which work must be performed, and in which the times when the work must be performed are not clear. This Section puts pressure on parties to make clear arrangements.
Tips for Employers
The accumulation of entitlements pursuant to Section 7:628a DCC may be prevented by:
- calling employees for a consecutive period of time. In that case the waiting time will be regarded as working time and wages will only have to be paid once for the waiting time. A normal break as an interruption will not create a new call in this case;
- agreeing an employment agreement of more than fifteen hours per week; or
- specifying the times when the work must be performed as unequivocally as possible.