A zero-hours contract is an employment contract for an on-call worker. You only call up an on-call employee when you have work for them. They only get paid for the actual hours they work. Your employee is entitled to a minimum of 3 hours pay when called. The same terms and conditions of employment apply to your on-call employees as to any other employee.
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Balance Employment Market Act (WAB): new rules for flex and on-call workers
On 1 January 2020, the Balance Employment Act came into force. The rules for labour and social security will change, specifically for on-call and flex workers. As an employer, you must follow the new rules. Read the checklist to find out what you need to do.
Choose between a fixed or temporary zero-hours contract
With a zero-hours contract you must choose between a permanent or temporary contract. In both cases you must adhere to the rules regarding employment contracts. For instance:
- All employees are entitled to a transition payment if you dismiss them.
- With a permanent contract a cancellation period applies. You can agree on a trial period and a non-competition clause.
- A notice period applies to a temporary contract. You must inform your employee at least 1 month before the end of the contract term whether you want to continue with them or not.
Pay at least 3 hours’ wages with every call
You must pay your on-call worker at least 3 hours’ wages per call. Even if your employee was only needed for 1 or 2 hours. However, there are conditions for paying out at least 3 hours:
- You have chosen a contract for less than 15 hours per week and you have not made agreements about working hours.
- You have not made a fixed agreement about the number of hours per call.
Always continue to pay the salary after 6 months
You must continue to pay your on-call workers wages, even if you do not have available work for them. This is called the Continued Payment of Wages Obligation (loondoorbetalingsverplichting). You and your on-call worker can agree to waive this obligation for the first 6 months of the contract, and only pay for hours worked. This agreement is only valid if you have it in writing. After 6 months you must continue to pay wages:
- if you have insufficient work for reasons that are your responsibility. For example, because a customer cancels an order.
- if work is available, but you fail to call them in.
- if you call up your employee, but they cannot perform the work because of something that is your responsibility. For example, because your equipment stopped working.
Do you fall under a Collective Labour Agreement (CAO)? Then you may possibly extend the exclusion of the continued payment of wages obligation by 6 months. You can check the conditions in your Collective Labour Agreement.
Continue to pay wages during sickness
If your on-call worker becomes ill during a call, you must continue to pay their wages. You pay for the hours of the call. The sickness pay must be at least 70% of the minimum wage.
Comply with employment conditions
An on-call worker is entitled to the same employment conditions as your other employees, such as salary, leave days and vacation days.This is always based on the number of hours that your employee has worked for you.
Leave hours and holiday entitlement with a zero-hours contract
- Your employee does not have a fixed number of working hours per week. Therefore a certain percentage per working hour is used to accumulate leave hours. That percentage is stated in a Collective Labour Agreement or in the employment contract.
- Your employee is entitled to a minimum of 8% holiday allowance of the employee’s gross yearly wage of the previous year. If your on-call employee worked for less than a year, you calculate the holiday allowance from the start of the employment.
- For parental leave, you calculate 26 times the number of hours worked per week. Since the number of hours are not stated in a zero-hours contract, you take the average number of hours worked per week in the past 3 months. If the past 3 months are not representative, you may also calculate it over a longer period of time.
Monitor the number of hours that your on-call employee works for you
Will your on-call worker work for you for at least 3 months in a row and for at least 20 hours a week? Then the average number of hours per month counts as their fixed working hours. This is called Legal Presumption of Employment Duration (rechtsvermoeden van arbeidsomvang).
Your employee may then ask you to change their zero-hours contract into a fixed-hours contract. If you do not want this, you must be able to prove that it was temporary. For example, in a written agreement or a shift roster as proof of a peak period.
Working without a contract
If you let an employee work for you without a written contract, you automatically have an oral employment contract with your employee. Nevertheless, you are legally obliged to have a number of things written down 1 month after your employee has started working for you. Keep in mind that some agreements are only valid if they are confirmed in writing. This is why most employers prefer a contract.