Ministry SZW answers questions on on-call contract under the Wab

Last week, the Ministry of Social Affairs and Employment (Ministry of SZW) published the "Knowledge Document on Calling under the Balanced Labor Market Act," which answers questions from practitioners about on-call contracts under the Wab.

The Wab: the new regime for on-call contracts

As we know, the Balanced Labor Market Act (Wab) will take effect on January 1, 2020.

Lonneke Nouwen previously informed you about the upcoming changes regarding zero-hours and min-max (on-call) contracts. Briefly, these are as follows:

- If the call is not given to the employee at least four days in advance, he is not obliged to comply with the call;

- if the employer modifies or withdraws the call within four days before the start of work, the employee is entitled to the wages to which he would have been entitled if he had in fact performed the work for which he was called;

- after 12 months, the employer must make an offer of permanent employment equivalent to the average volume of work in that previous 12 months.

The idea is that the uncertainty for on-call workers about work and income will be reduced, that on-call workers will be better able to find other (possibly permanent) work and will be less at the mercy of the "whims" of their employer. Favorable perhaps for the employee, but less favorable for the employer?

Still room for flexibility?

One way to avoid the application of the new on-call agreement regime is to agree on the scope of work. For example, by agreeing on a fixed number of hours per week, month or year. In the case of an annual hours standard, wages must then be spread proportionally over twelve months. The employee may be asked ("called upon") to work more than the agreed number of hours. Those hours can then be marked as overtime, or the employer works with a plus and minus system. This way there is still room for flexibility.

The employee then does not have to respond to the call for more hours, but the on-call regime as explained above also does not apply.

Knowledge document call under the Wab

Last week, the "Knowledge Document on Call under the Balanced Labor Market Act" was published. The knowledge document, issued by the Ministry of Social Affairs and Employment, discusses the new laws and regulations regarding on-call. In fact, there were questions from practitioners about the new on-call agreement and the annual hours standard, which the Ministry wanted to address in the run-up to January 1, 2020.

In summary, the knowledge document offers the following insights (among others):

- Overtime with a fixed scope of work does not lead to an on-call contract, even if the overtime is extensive and structural. However, the employee may then be entitled to the legal presumption of an average scope of work;

- For part-timers, the on-call regime does not apply, provided they have a fixed-term or indefinite employment contract with a fixed number of hours;

- for the calculation of the 12-month period, all types of employment contracts count, including employment contracts that do not count as on-call contracts. For example: the first employment contract is concluded for 6 months, for a fixed number of hours of 12 per week. The second employment contract is also concluded for 6 months, but for a minimum of 12 and a maximum of 20 hours per week (a min-max contract, i.e. an on-call contract). At the end of the second contract, if continued, an offer for fixed size must be made;

- the annual hours standard must not cause the employee to fall below the minimum wage per hour worked backwards;

- The four-day notice period applies in calendar days, not working days. No extreme time on that particular day applies. For example: a call is made on Monday for Friday, then this may also be on Monday evening;

- after the employer has made the offer of permanent work scope, the employee has one month to accept it. The moment of the employee's acceptance is when the new work scope comes into effect.

Getting started!

The Wab has quite a few implications for practice. If you work a lot with on-call contracts within your organization, then this applies to you in particular. If you have employees who will be working under an on-call contract on or after January 1, 2020, then you may also have to make an offer for fixed hourly compensation as early as January 2020.

Our seminar on the Wab will take place on Thursday, October 10, 2019. Due to great interest, registration is no longer possible, but your questions about the Wab and its implementation can of course be addressed to us at any time. An in-house course is also among the possibilities, please visit the website of our PvdB-Academy for that!