Changes under the WAB: On-call contracts & payrolling

Employment Law

6 August 2019

Changes under the WAB: On-call contracts & payrolling

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The subject of this article on the Balanced Labour Market Act (WAB) is the new rules regarding on-call workers and payrolling. This is the area where the biggest changes take place under the Balanced Labour Market Act (WAB). The intended effect is that more people get a permanent employment contract. Hiring on-call workers and payrolling must therefore become more expensive. On-call workers are employees who do not work a fixed number of hours at fixed times. So little certainty in terms of income. Those rules are being significantly tightened. The aim is to reduce the number of on-call workers and to ensure that more people get a more stable income and a permanent job. That benefits the economy. Payrolling is the hiring of employees who are on the payroll of payroll companies. For the same reason as mentioned above, the new rules regarding payrolling will make payrolling itself much more expensive and therefore less attractive, meaning fewer companies will be inclined to switch to payrolling.

Change #1: Stricter statutory rules for on-call contracts

On-call agreements are often used by employers in the current labour market, appropriately or not. This allows employers to call on employees only when work is actually available. Understandable for employers with major seasonal influences, etc. If there is no work, the employer can simply leave the employee at home without paying salary. A great deal of freedom for the employer, which is also misused. This must be curbed with the help of the new rules. Whether that will actually work remains to be seen.

Definition of on-call worker to be laid down in law
At present there is still no statutory definition and regulation of this type of contract. With the introduction of the WAB, a statutory definition and regulation of the on-call agreement is introduced into the Dutch Civil Code (article 7:628a paragraph 9 of the Civil Code et seq.). These statutory provisions are intended to resolve the many uncertainties currently surrounding the on-call agreement.

Which agreements will fall under this definition and regulation?
The following contracts in any case fall under the definition of on-call worker, because in all these variants the employee has no clarity about the scope of their hours:

zero-hours contracts (the employee has zero hours guaranteed work and, if called upon, has a duty to appear. This contract can only be used for the first 6 months of an employment contract, after which a switch must be made to a min-max agreement);
min-max agreements (the employee has a minimum number of fixed hours and can be called upon up to a maximum number of hours per week) and;
agreements in which the obligation to continue paying salary is excluded for six months, such as with first-phase temporary employment agreements.

There are of course sufficient possibilities to remain outside this statutory definition and regulation while still retaining some flexibility in terms of deploying hours. This is only possible if the employer nevertheless agrees a fixed scope of hours with the on-call worker. This can be done, for example, by agreeing an annual hours norm. Always seek advice on this from an employment lawyer. What is the most suitable solution for the specific company?

New statutory rules for on-call workers

The new rules mainly concern:

Obligation to offer a fixed scope of work
Call-up periods laid down in law
Short notice period for on-call workers.

1. Obligation to offer a fixed scope of work. If an on-call worker has had an on-call contract for longer than 12 months, the employer must, from January 2020, make a written offer to the employee for a fixed scope of work within one month. That offer must be based on the average number of hours per week that the on-call worker worked in the past year.

Sanction for not offering, or not offering in time. If the employer does not make such an offer, then a wage claim arises for that portion of the fixed average hours per week from the past year that has not subsequently been paid out. Such a claim only becomes time-barred after 5 years.

Tip: It is therefore best to make such a written offer as standard and to also include the rejection thereof in the records. After all, the employer will have to prove that the employee did not want those hours. This happens more often because on-call workers also do not always want to be tied down and specifically want that flexibility.

2. Call-up period laid down in law. An employer will soon have to inform an on-call worker in writing or electronically no later than four days in advance when they must come to work. If the employer withdraws the call-up within four days before the start of the work, or changes the times of the call-up, the employee is entitled to continued payment of wages for the period for which they were originally called up.
Please note: A shorter period than four days can be agreed in the CLA, but the period may never be shorter than 24 hours. The right to wages in the event of a cancellation of the call-up cannot be excluded in the CLA.

3. Short notice period for on-call workers. An employee with an on-call contract will soon be able to observe a notice period of four days (unless a shorter period has been agreed in the CLA).
Please note! The new rules do not apply to on-call workers with a pre-agreement. The pre-agreement is a statement of intent in which the parties have agreed that if, in a given case, a call-up is made and it is accepted, only then does an employment contract arise for the duration of that call-up. The employer is free to call up or not, the employee is free to refuse or accept a call-up (unlike with an on-call agreement).
The rules also do not apply to employees with paid standby or on-call availability duties. This latter group does not fall under the statutory definition of an on-call agreement because they also have a permanent contract in addition.

What do employers already need to arrange regarding on-call contracts before 2020?
The above-mentioned scheme has immediate effect. This means that employees who, for example, on 1 January 2020 at 00:00 have already been working for longer than 12 months on the basis of an on-call contract must receive a written offer for a fixed scope of work no later than 1 February 2020. Of course, an on-call worker may refuse this if he or she is not waiting for a fixed-hours contract and also wants to remain flexible in being scheduled or not.

TIP #1: So keep good track now in the personnel administration of who this will concern on 1 January 2020, and of course for every on-call worker who must receive such a written offer of a fixed scope thereafter.

Tip #2: The new rules regarding on-call workers become a lot less non-committal. That is why it is a good idea to already consider in 2019 whether an entrepreneur should really continue working with on-call contracts, at least in part, in 2020. Especially in view of the higher unemployment insurance (WW) premiums that will soon have to be paid for on-call workers (this will be discussed in part 3).
Please note! It naturally remains to be seen to what extent employees will actually invoke these new rules. Do not underestimate this! Employees can sometimes come back to this years later. The (legal) claim for recovering wages in the event a written offer of the fixed scope of work has been forgotten only becomes time-barred after 5 years.

Change #2: Different rules regarding payrolling

Statutory term in the law on payrolling
A statutory definition and regulation for the payroll agreement will also soon be included in the Dutch Civil Code. Due to the absence thereof, a payroll agreement can currently still fall under the definition of a temporary employment agreement. As a result, a payroll company can currently still improperly make use of the temporary employment clause and the wider chain provision. The latter makes it possible to give a payroll employee a maximum of six (instead of three) temporary contracts within a period of a maximum of four (instead of two) years before they are entitled to a permanent contract.

No more temporary employment clause and no more wider chain provision
Due to the statutory definition, payroll companies will no longer be able to make use of the wider chain provision and the temporary employment clause (if the client stops hiring, the temporary worker no longer needs to be paid). For clients working with payroll employees, this means that they can make use of the same payroll employee(s) for a shorter period of time, unless the payroll company offers that employee a permanent contract.

Please note: With the introduction of the WAB, the chain provision will also change. Read more about this in our article on the Changes under the WAB: temporary employment contracts.

Same terms of employment
Payroll employees will soon be entitled to the same terms of employment as employees who are employed by the employer in an equal or comparable position.
In addition, payroll companies must offer payroll employees an adequate pension provision.

Please note: The old law remains applicable to the payroll agreement that was concluded before the entry into force of the law.

In short

All these measures will probably ensure that payroll companies start charging higher rates for hiring payroll employees. Employers will therefore face higher costs as soon as they want to make use of the payroll construction. The payroll construction will probably become less popular for this reason. There is a good chance that payroll companies will make the switch to becoming ‘temporary employment agencies’ and will thus also start engaging in job placement. This can have a cost-increasing effect, causing more employers to again consider taking people into employment themselves. This will result in more permanent employment contracts. That is exactly the aim of the WAB, but whether that will materialise remains, as always, an open question.

Help from TLC:
We would be happy to advise or support you in devising pragmatic and legally sound solutions regarding on-call workers and payrolling.

Would you like a permanent employment lawyer by your side for a fixed monthly fee to guide you through the jungle of these new rules? Then also consider our subscription service The Legal Safe. The alternative to legal expenses insurance.

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