The so-called "on-call contract" is an employment contract in which the worker agrees to perform the agreed activity whenever the employer requires their services (Pierre Engel, Swiss Law Contracts, 2nd edition, Bern 2000, p. 354; Pascale Byrne-Sutton, Part-Time Employment Contracts, Zurich, 2001, p. 97; Bruno Kistler, On-Call Employment Contracts, Recent Jurisprudence, in: ECS 2000, p. 965).
It is important to distinguish the so-called on-call work from occasional work. In the former case, the tasks performed by the employee are based on a single, ongoing employment relationship. In the case of occasional work, each task creates a new contract. Thus, there are multiple employment contracts.
To fully understand this type of contract, another distinction must be made between the so-called on-call employment contract and the genuine on-call employment contract. In both cases, the tasks performed by the employee are based on an ongoing employment relationship (unlike occasional work). However, under a genuine on-call employment contract, the employee cannot refuse the tasks requested by the employer. The employee is bound to the employer, with working hours and duration unilaterally set by the employer according to their needs, and the worker must be available to them. In the case of a so-called on-call employment contract, the employee can refuse the tasks.
Indeed, the employee is free to refuse to perform the services requested by the employer. They have the freedom to pursue other employment activities and can refuse the offered tasks without being deprived of future requests. The employer, in turn, is not obliged to call upon the employee’s services again (ATF 8C_318/2014 of May 21, 2015, consid. 5.1 / STREIFF/VON KAENEL/RUDOLPH, Employment Contract, Practical Commentary on Art. 319-362 OR, 7th ed. 2012, n. 18 ad Art. 319 p. 111 and p. 116 s).
The worker, being able to refuse potential offers from the employer, maintains control over their time. Thus, they can work for other employers and have multiple sources of income.
This type of employment contract is perfectly legal. The Federal Court has indeed recognized the potential flexibility of working time (ATF 124 III 249 = JT 1999 I 275).
The question that may arise is whether the time an employee waits to be contacted by the employer should be remunerated. Two situations need to be distinguished. When the waiting time occurs at the workplace, these hours must be paid at a normal hourly rate.
However, when the waiting time occurs at home, these hours should be remunerated but at a lower rate than the ordinary rate, unless otherwise agreed by the parties. In the absence of an indication, the employer will need to pay the usual allowance (Article 322 para. 1 CO; Olivia Guyot Unger, Is On-Call Work Legal? Yes, but Under Certain Conditions, January 19, 2019, Published in Entreprise Romande).
Regarding the termination of a so-called on-call employment contract, the ordinary labor law rules apply. When the contract is for a fixed term, it ends automatically upon expiration. However, when the contract is for an indefinite term, notice must be given, and legal or contractual notice periods must be observed depending on the total duration of the employment relationship between the parties (Articles 335 and following CO).
It is important to note that this type of contract represents a certain level of insecurity for the worker, as both the activity and the salary remain highly uncertain. Therefore, it is crucial to properly frame and regulate your employment contract.
If you need further legal information on this matter, please do not hesitate to contact Valentin Legal Consultation. We would be delighted to welcome you to our offices: either for advice or to use our online services. We are also available by phone at 021 351 30 00 or by email at info@cjdv.ch.
Comments