Balanced Labor Market Act

The Balanced Labor Market Act (the “Wab”) came into effect on January 1, 2020. The Wab changes, among other things, the position of on-call workers, with the aim of strengthening the position of on-call workers and providing more security. As a result, employers will have additional obligations with regard to on-call workers they deploy.

Mr. Tjeerd Hoekstra Lawyer at CMS

On-call workers work on the basis of an employment contract for a fixed or indefinite period, in which no fixed number of working hours per week or month has been agreed. The employee is called when there is work available and is obliged to respond to a call. There are two variants of on-call contracts: the zero-hours contract and the min-max contract.

In a zero-hours contract, the employee only performs work when called upon. The employer does not pay wages if the employee has not worked. The min-max contract stipulates that an employee works at least a certain number of hours per week ("the guaranteed hours") and that this number can be increased by the employer on an on-call basis up to a certain maximum. The guaranteed hours are always paid by the employer, even if the employee has not been called upon.

The minister considered it necessary to strengthen the position of on-call workers, because in practice there was uncertainty for this group of employees about when they could be called up and for which hours they were then entitled to wages. As of 1 January 2020, the employer must comply with the following obligations when calling up employees.

• The employer must call the employee at least four days in advance, either “in writing or electronically”. If this is done later, the employee is not obliged to respond to the call.
• If the employer withdraws the call within four days, the employer remains obliged to pay the wages for the period for which the employee was called up.
• This period of 4 days under points (1) and (2) can be shortened by collective labour agreement, provided that the period is not shorter than 24 hours.

Obligation to offer

Furthermore, the Wab stipulates that the employer may make limited (unilateral) use of a flexible working volume. If the employment contract has lasted longer than 12 months, the employer is obliged to offer a fixed number of working hours in writing or electronically. The fixed number of working hours that the employer must offer is equal to the number of hours that the employee worked on average the previous year. This offer must be made by the employer within one month after the expiry of these 12 months. As long as the employer fails to make this offer, the on-call worker is entitled to wages for this average number of hours.

In calculating the 12-month period, fixed-term employment contracts are added together if they have succeeded each other with intervals of 6 months. It is also important that successive employment contracts between different employers are added together if these employers can reasonably be expected to be each other's successors.

A transitional arrangement applies to employees who have been working on the basis of a flexible working schedule for more than 12 months as of 1 January 2020. The transitional arrangement stipulates that employers are obliged to offer a fixed number of working hours to these employees within one month after 1 January 2020 – i.e. before 1 February 2020. If the employer has not yet done so, it is important to gain insight into which employees are entitled to such an offer as of 1 January 2020. If the employer does not comply with this offer obligation, there is a risk that an employee will claim payment of wages based on his average hours as of 1 January 2020.