It has become clear that the Coronavirus is affecting all layers of society. The economy has come to a standstill and many employees are advised to work from home. Flexible workers are not (or less) called upon to work, resulting in a significant loss of income. Since the outbreak of the Corona crisis, we have received many questions from flexible workers about their right to continued payment of wages. Many employers and employees appear to be unaware of the rights of flexible workers with regard to continued payment of wages. In this article, we want to inform employees about their right to continued payment of wages.
On-call workers
If on-call workers are employed on the basis of a so-called zero-hours contract, the principle is: no call, no work, and therefore no pay. This may be different if on-call workers have been employed for more than 3 months. Under certain circumstances, they may invoke the creation of a so-called statutory presumption of the scope of their work after that period. This means that the scope of work is presumed to be equal to the average working hours in the preceding period of 3 months. In other words, if an on-call worker with a zero-hours contract has worked an average of 24 hours over a period of 3 months, it is presumed that the scope of work is 24 hours and the employer must pay for these 24 hours. This presumption also applies to minimum-maximum on-call contracts. In such cases, the employer is obliged to continue paying the wage for the guaranteed minimum hours. However, if the on-call worker claims that he has been called up for more than the minimum number of hours on average per month for the past 3 months, the employer may be obliged to pay for this higher average. In addition, the employer is obliged to offer on-call workers a fixed scope of work after 12 months (based on the average of those 12 months). The wage for that fixed scope of work must be paid as usual.
Temp workers
For temporary workers, the type of temporary employment contract is decisive for the question of whether the temporary worker is entitled to continued payment of their salary.
Phase A (ABU) or 1-2 (NBBU):
If there is an employment agency agreement with a termination clause and the work disappears at the client, the employment agency agreement also ends immediately. Therefore, the temporary employment agency is not required to pay the salary if work disappears. Under certain circumstances, however, the temporary employment agency may be bound by a notification period. The length of this notification period depends on the applicable collective labor agreement and the duration of the temporary employment agreement.
Phase B (ABU) or 3 (NBBU):
In this phase, there is a fixed-term employment contract for temporary work. The date on which this contract expires is stated in the employment contract. According to the collective labor agreement (cao), the temporary employment agency must pay the salary until the end of the employment contract (excluding allowances). This also applies if (part of) the agreed hours are lost as a result of the Corona crisis.
Phase C (ABU) or 4 (NBBU):
In this phase, there is a temporary employment contract for an indefinite period. The temporary employment agency must continue to pay the actual wage (without allowances) for as long as the employment contract lasts. This also applies if (part of) the agreed upon hours are lost.
Legal support
Assessing the rights of flexible workers remains a difficult task. Each situation must be assessed to determine whether a flexible worker is entitled to continued payment of wages. Our lawyers have years of experience in representing the interests of flexible workers and can provide you with advice and support if needed. We also believe that everyone, regardless of income, should have access to excellent legal support. Our lawyers therefore work on the basis of legal aid (also known as pro bono legal assistance), if your personal situation requires it. To make an appointment to meet our office completely free of charge and without obligation, please call: Amsterdam: 020 747 00 55 The Hague: 070 450 03 00 Rotterdam: 010 311 55 00 Eindhoven: 040 711 30 99 You can also reach us by email at: [email protected].
Frequently Asked Questions
Are on-call workers entitled to wages if they have a zero-hours contract and are not called to work during the COVID-19 crisis?
Typically, zero-hours contract workers receive no pay if they are not called to work. However, after working for more than three months, they may invoke a presumption that their average hours over that period are their guaranteed scope of work, entitling them to corresponding wages.
What rights do temporary workers have regarding continued payment if their work at a client stops due to the pandemic?
For temporary workers with an employment agency agreement that includes a termination clause, wages are generally not continued if the work disappears, as the agreement ends immediately. However, if a fixed-term contract is in place, the employer is usually required to pay wages until the contract naturally expires.
How does the type of temporary employment contract affect a worker’s right to continued payment during the COVID-19 crisis?
The contract type determines the right to continued wages: in phases A and B, the employment agency may not be required to pay if the work stops, unless specific conditions or collective agreements stipulate otherwise. Fixed-term contracts typically require wages to be paid until the contract’s scheduled end date.
What obligations do employers have toward on-call workers after 12 months of employment?
Employers are obliged to offer a fixed scope of work based on the average hours worked over the past 12 months, and wages for this scope must be paid as usual. This provides stability and clarity for on-call workers during uncertain times like the COVID-19 crisis.
