Consignment, standby and on-call shifts under the WAB

Some employees work on a fixed schedule with normal working hours and are also required to perform special consignation,- on-call or on-call shifts. Are those types of employees on-call workers or not? And do you have to pay the high or low differentiated WW premium for them?

As of January 1, 2020, the Balanced Labor Market Act (WAB) comes into effect. From that date, new rules will apply regarding on-call contracts, which Lonneke Nouwen and Antoinette Niebeek informed you about earlier.

The new rules on on-call contracts are especially important if you work with employment contracts where the scope of work is not fixed (such as zero-hours contracts) or varying hours are agreed (as with min/max contracts). If an on-call contract is involved, you will be obliged to pay high differentiated unemployment insurance premiums as of January 1.

Decision on special services

The government has drafted a "Decree containing further rules on on-call agreements," which, like the WAB, will enter into force on January 1, 2020. In doing so, the government aims to eliminate as much as possible any ambiguity that exists regarding the answer to the question of when an on-call agreement exists.

Some employees work on the basis of an employment contract with fixed hours, while also performing special shifts. Exceptions are made for these types of workers to prevent their work from suddenly being considered an on-call contract with all its consequences. An exception applies to three special services:

1. Consignment shifts (watch or picket shifts);
2. On-call services;
3. Attendance services (sleep services).

Consignment shifts are often called picket or standby shifts. The employee must be available at fixed times to come to work as soon as possible in case of unforeseen circumstances. Usually these shifts are scheduled in advance and the employee receives a consignment allowance or time for time if he actually comes to work. Partly for this reason, these shifts are not considered on-call contracts for which different ground rules apply as of January 1, 2020. If the calls are unforeseeable and occasional, the employee receives remuneration for the hours he is available but is not called, these shifts fall outside the rules on on-call agreements in the law.

On-call work is particularly common in the healthcare sector. These are specifically nursing and care workers, physicians and midwives, and ambulance workers. Even with on-call shifts in these sectors, the time during which the employee is available but not always called is usually compensated in cash or through time-for-time arrangements. On-call shifts are therefore also not regarded as on-call contracts, provided that the scope of work is otherwise defined as a number of fixed hours per unit of time. This is specifically regulated in most collective bargaining agreements.

Finally, specific regulations also exist for on-call shifts, which in some sectors are also called sleep shifts. The entire time spent on duty is considered working time within the meaning of the Working Hours Act. In this sense, these on-call shifts differ from on-call and on-call shifts where the time is only regarded as working time as soon as the employee must actually come to work. These on-call shifts must be paid for. Often, however, the salary is lower than during a regular shift. This is usually regulated by collective agreement.

High or low unemployment premium?

If the open-ended employment contract is properly drafted and clearly states that the employee should sometimes also work during one of the aforementioned special shifts, you will pay the low differential unemployment contribution and you will not be bound by the rules about on-call contracts. Furthermore, do not forget to mention this on the pay slip as well.

If overtime and on-call/available (and possibly on-call) hours together on an annual basis exceed 30% of the fixed working hours, the UWV may come to the conclusion that the high WW premium must still be paid. That regulation is intended to prevent abuse of the statutory system by having employees work an excessive number of special shifts.

Have you properly prepared your contracts for the new year? If not, we are happy to help.