Do you work as a call worker (e.g. in the hospitality industry) structurally more hours than stated in your contract? Then you can rely on the legal presumption of work volume (art. 7:610b BW). This ensures clarity about the number of hours you are entitled to – even in case of illness, schedule changes and wage continuation.
In this article, we explain when you can use the legal presumption, how to calculate the hours, what an employer can object to, and how this relates to the mandatory offer of fixed hours from the WAB (art. 7:628a BW).
What is the legal presumption of work volume?
After a minimum of three months of work, it is assumed that your contract hours are equivalent to the average number of hours worked in the past three months. This is a rebuttable assumption: the employer can try to prove that that period is not representative (e.g. due to a seasonal peak).
Why is this important?
The number of contract hours influences, among other things, wage continuation in case of illness, holiday days, holiday pay, pension accrual and schedule certainty.
When can you rely on the legal presumption?
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There is uncertainty about your average work volume (typically with zero hours or min-max).
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You work structurally more than agreed.
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You are scheduled less while you previously worked more for a long time.
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You are sick and there is a dispute about the average number of hours to be paid.
Attention: it must be a representative work period. If the 3-month period is not representative (a lot of replacement during holiday peak or less hours due to own illness/holiday), then another reference period may fit better (e.g. 12 months).
How do you calculate the work volume?
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Add your actual hours worked per month in the chosen reference period.
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Divide by the number of months (standard 3; sometimes 12 in case of peak/dip).
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The result is the monthly average (or converted weekly average) that you can claim as contract volume.
Example hospitality
You have worked an average of 25 hours per week on a zero-hour contract for the last 3 months. Then you can request to set your contract at 25 hours per week and claim arrears of pay if you are now scheduled less.
How can the employer rebut the presumption?
The employer must substantiate that the chosen period is not representative, for example because:
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there was a case of temporary peak (summer, events);
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you replaced colleagues (illness, leave, pregnancy);
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your own hours in that period differed from the normal pattern.
If the rebuttal fails? Then your average is maintained as contract volume.
Relationship with the mandatory offer of fixed hours (WAB)
In addition to the legal presumption, the WAB rule applies: after 12 months of call agreement, the employer must within one month make a written offer for fixed hours at the level of the average over the preceding 12 months (art. 7:628a para 5 BW).
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Do you refuse that offer or do you not respond in time? Then you can still appeal to the legal presumption.
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If contracts follow each other with intervals ≤ 6 months, then those periods are added together.
Practical examples
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Zero hours, structurally 24 hours: employee is suddenly scheduled for only 8 hours. With art. 7:610b BW he claims 24 hours + supplemental salary.
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Summer season: 3 months of 30 hours per week due to terrace traffic; normally 16 hours. Employer demonstrates peak → 12-month reference period; result ± 18-20 hours.
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Illness: employee drops out; average contract size determines wage payment and accumulation of leave.
Step-by-step plan to record your hours
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Collect evidence: schedules, pay slips, hours overviews.
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Calculate your average (3 months; or substantiate why 12 months is more representative).
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Send a written request to adjust contract size and fulfill arrears of pay.
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Does the employer not respond or does he refuse? Let us take legal action (negotiation or district court).
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Deadlines and limitation periods: don’t wait too long; claims have limitation periods.
Frequently asked questions
Does the legal presumption also apply to min-max?
Yes. It concerns the actual average; the presumption works for all contract types with unclear or fluctuating hours.
Can I also use it when I am sick?
Just then it is relevant: the wage payment is in line with the average work volume.
What if the 3-month period is unfavorable to me?
Substantiate why 12 months is more representative (e.g. because you were ill during those 3 months or had vacation).
Can the employer reduce my hours as ‘punishment’?
This could violate good employer-ship and your legal position from 7:610b BW. Let us take a look.
Help from Arslan Lawyers
We calculate your average, draw up the letter, assess representativeness, and litigate if necessary. For employees, we work free of charge wherever possible, as we recover our costs from the employer or legal aid‒or we make clear arrangements up front.
Frequently Asked Questions
What is the legal presumption of work volume and how does it benefit me as an employee?
The legal presumption of work volume assumes that your contract hours are equal to the average hours worked in the past three months, providing clarity on your entitled hours. It helps ensure you receive correct wages, holiday pay, and schedule certainty, especially when your actual work hours fluctuate.
When can I rely on the legal presumption of work volume?
You can rely on it when there is uncertainty about your average work hours, when you regularly work more than your contract, or if there are disputes about scheduled hours during illness or schedule changes. It also applies if your work period is representative of your typical work pattern.
How is my work volume calculated under this legal presumption?
You add up the actual hours worked each month over a chosen period, then divide by the number of months to find the average monthly hours. This average can then be used to determine your contract hours and claim any owed wages if you worked more or less than agreed.
How can my employer challenge the presumption of work volume?
Your employer must provide evidence that the chosen reference period is not representative, such as seasonal peaks, temporary replacements, or deviations from normal hours. If they fail to do so, the average hours from that period will be upheld as your contract hours.
