Since the Balanced Labour Market Act (Wet Arbeidsmarkt in Balans, “WAB”) entered into force on 1 January 2020, employers are obliged to make their on-call workers an offer for a fixed scope of work annually. Since this obligation has created uncertainty in practice, the statutory regime will be adjusted on 1 July 2021. We will discuss this change below. Besides, the first court ruling about the obligation to offer a fixed scope of work was recently rendered. This ruling will also be discussed.
Statutory Regime
An on-call contract is an employment contract for a definite or an indefinite period of time, in which the employer agrees to call an employee when work is available. The absence of an obligation for the employer to call the employee causes uncertainty for employees.
The WAB was intended to strengthen the position of on-call workers and to provide them with more security. Since 1 January 2020, whenever an on-call contract has lasted twelve months, the employer is therefore obliged to make the on-call worker an offer for a fixed scope of work. This scope of work must be at least equal to the average scope of work during the previous twelve months. If the employee accepts this offer, he no longer has an on-call agreement, because the scope of work has become fixed. If the employer does not make an offer, the on-call worker will be entitled to wages as if he had received and accepted the offer. This may cause employers to be confronted with (high) claims for back wages later on.
Change as of 1 July 2021
Incertainty has arisen in practice, because the law provides no clarity on the effective date of the offer for a fixed scope of work. This makes it possible to set an effective date in the offer that lies far ahead of the time when the offer was made. Another problem is that the employee can postpone accepting the offer, which causes uncertainty as to the form in which the employment contract will be continued.
Starting from 1 July 2021, Section 7:628a (5) of the Dutch Civil Code (DCC) provides that the fixed scope of work will commence ultimately on the first day after the passing of two months ever since the employment contract has lasted twelve months; in other words, it will commence on the first day of the fifteenth month. The term within which the employee can accept the offer is set at one month.
Court of Limburg
If the employer makes no offer for a fixed scope of employment, this means that the employee will be entitled to wages as if such an offer had been made. This situation came up recently in a ruling given by the Court of Limburg.
An employee works for an organization that supplies employees to catering establishments. She had been employed since March 2017 and was working an average of 17.72 hours per week in 2019. The employer should have made her an offer for a fixed scope of work in January 2020 at the latest. In the year 2020, the employee worked far less due to the corona crisis. This employee brought a claim for back wages in preliminary relief proceedings.
Her claim for wages was awarded. The fact that the employer had not made the employee an offer for a fixed scope of work was not in dispute. Another relevant aspect is that the Court considered that being available for work is not a condition for the claim for wages to arise. According to the Court, the fact that the employee has denied work assignments did not mean that she was not entitled to wages. The employee is entitled to wages since February 2020 according to the fixed scope of work the employer should have offered her (17.72 hours per week), after deduction of the wages already paid. In addition, the Court also awarded the statutory increase of 50% and the statutory interest on the wages from the date of default until the date of full payment.
Conclusion
An employer's failure to make an on-call worker an offer for a fixed scope of work may have big financial consequences. The court ruling discussed above is an example of this. Employers would therefore do wise always to offer on-call workers a fixed scope of work whenever twelve months have passed. The change to the statutory regime as of 1 July 2021 sheds more light on the effective date of the fixed scope of work, and on the term within which the employee has to accept such an offer.
Feel free to contact our labour & employment team if you have any questions.
