The legal aspects of an on-call contract with a preliminary agreement

An on-call contract with a preliminary agreement is not an employment contract, but an agreement to only enter into an employment contract once the employer makes a call and the on-call worker accepts that call. The core principle is non-binding: the employer is not required to offer work, and the employee is not required to accept work. However, with every accepted call, a genuine fixed-term employment contract is created — with all the associated rights. Below, you can read exactly how it works and where the pitfalls lie.

What is an on-call contract with a preliminary agreement?

An on-call contract with a preliminary agreement (a preliminary agreement for short) is a basic agreement in which the parties record only the arrangements that apply if an actual call is made and the on-call worker responds to it. Such a preliminary agreement includes, for example, the job description and the salary, plus agreements that apply later once work is performed.

Difference between a preliminary agreement and an employment contract

A preliminary agreement is not an employment contract. It is merely the agreement to enter into an employment contract as soon as a call-up is made and accepted. That means:

• the employer is free to offer work or not;
• the employee is free to accept or decline that work;
• For every accepted call, a new fixed-term employment contract is created.

With a standard employment contract, this lack of obligation does not apply: there is a hierarchical relationship, and the employee must perform the assigned work. You can read more about the on-call contract on our contract page.

Note: the chain rule

The non-binding nature is limited. After a number of call-outs, permanent employment may still arise based on the chain rule. In broad outline:

• In the case of multiple consecutive temporary contracts, a contract for an indefinite period may arise;
• This applies when the maximum number of contracts or the maximum period is exceeded.

TODO_VERIFY: the exact chain provision (number of contracts, maximum duration, and intervals, Art. 7:668a BW) and any deviations under the collective labor agreement change regularly — check the current rules before relying on them. Employers who do not wish to establish a permanent employment relationship therefore deliberately schedule time between call-ups.

Difference between a preliminary agreement and a letter of intent

between a preliminary agreement and a letter of intent : a preliminary agreement is essentially a specific application of a letter of intent. The parties declare their intention to make a call-up in certain cases and thereby create a fixed-term employment contract, if that call-up suits the employee. You can indicate in advance which call-ups may and may not be made.

What rights apply once a call has been accepted?

As soon as a call-up is accepted, a fixed-term employment contract is created and all standard labor law rules apply. Important consequences:

• A minimum of three hours' pay per call. Even if the call involves only one or two hours of work, at least three hours must be paid.
• Right to sick pay if the called-up employee falls ill during the call-up period.
• Accrual of holiday entitlements and entitlement to holiday allowance, to be paid by the employer.

Agreements regarding this are often already included in the preliminary agreement, for example concerning the annual payment of holiday allowance. If an employment contract is established later, this may be deviated from in writing.

When do you use a preliminary agreement?

The preliminary agreement is intended for situations where you desire flexibility without immediately having permanent employment. Many employers use it for a pool of on-call workers whom they can deploy during a temporary increase in production. There is a period of time between calls to prevent the unintended creation of permanent employment.

Frequently Asked Questions

Is a preliminary agreement the same as a zero-hours contract?

No. With a zero-hours contract, a continuous employment agreement without a fixed number of hours already exists. With a preliminary agreement, there is no employment agreement yet; this only arises per accepted call.

Do I always have to pay a minimum of three hours?

Yes, there is a right to at least three hours' pay per call, even if fewer hours were worked.

When does permanent employment arise under a preliminary agreement?

Due to the chain rule, a permanent contract may arise after a number of consecutive contracts or after a certain period has elapsed. Check the current rules and your collective labour agreement, and allow sufficient time between call-ups.

Am I allowed to refuse a call as an on-call worker?

With a preliminary agreement, you are in principle free to refuse a call-up. An employment contract for that period only arises upon acceptance.

A tailor-made on-call contract or preliminary agreement?

A preliminary agreement offers flexibility, but an incorrect setup can unintentionally lead to permanent employment or wage claims. Therefore, have your on-call arrangement legally reviewed.

Our employment law will draft a suitable on-call contract or preliminary agreement for you. Schedule a no-obligation intake consultation.