Besides the current state of legal and tax affairs surrounding self-employed workers, in this blog we will also tell you that the self-employed worker is, in some respects, a wolf in sheep’s clothing. That is something you do need to guard against in good time. Certainly at a point in the economic cycle where the tide is starting to turn.
SER advice on self-employed workers and self-employment government plans in 2023
On 1 June 2022, the Social and Economic Council (SER) (an advisory body made up of employers, trade unions and independent “crown members”) presented its advice to the government on the labour market, including stricter rules for self-employed workers.
Following that advice, the government drew up a Letter on the Main Lines of the Labour Market for 2023 and beyond on 5 July 2022, in which it sets out its plans, including for self-employed workers.
Concretely, those plans amount to:
- Working towards a more level playing field for contract forms with respect to social security and taxation. An occupational disability insurance (AOV) will be introduced for the self-employed; tax advantages will be phased out (more quickly); and possibly a mandatory pension (still to be worked out).
- Creating more clarity on the question of when work is performed under that authority relationship as an employee, versus as a self-employed person outside employment. The government also wants to support people in asserting their legal position as an employee in cases of false self-employment. Again, we of course hope that the self-employment web module continues to be used in this, because simply by answering questions a determination is produced. So one can obtain certainty in advance, provided the answers given are truthful.
- Adjustment of the concept of “authority”. In clarifying the rules around assessing the working relationship, it does hold that standards within employment law (civil law) will always retain a certain openness. This is also desirable — after all, not every situation can be foreseen by the legislature, and rules need to be able to move with the dynamic practice of the labour market. The grey area can be narrowed somewhat by that self-employment web module, but more use will therefore mainly be made of legal presumptions. It remains to be seen what those legal presumptions will turn out to be. Think, for example, of rates. Self-employed workers working for rates below €35 will then be presumed to be employees unless the client can demonstrate otherwise.
Separate statutory scheme for self-employed workers based on the Belgian model?
On 15 September 2022, the House of Representatives again discussed the labour market, during which a senior manager from Van Havermaet in Hasselt (Belgium) gave House factions more information, via a lunch meeting, about Belgian self-employment regulations and the opportunities this offers for the Netherlands. Minister Van Gennip has indicated that she wants to draw inspiration from the Belgian model. Belgium has an Employment Relations Act in which the position of self-employed workers is laid down by law.
Belgium has neutral, general criteria that apply to every self-employed worker, and in a number of sectors there are additional specific sectoral criteria. This concerns construction, security, transport, haulage, agriculture and cleaning.
This kind of dedicated statutory scheme could perhaps offer far more clarity than the endless search for a single formula for the authority criterion.
The Belgian approach with its own scheme will, in any case, make it possible to launch enforcement against false self-employment more quickly and in a more targeted way.
Risks with self-employed workers, wolf in sheep’s clothing, in 2023
Currently, incidentally, the biggest risk is not the retrospective tax assessment for false self-employment. After all, there is still no enforcement of the DBA Act, except against bad-faith actors, and even that is on the back burner. The greatest risk that will emerge will mainly arise when sending the self-employed worker home due to a decreasing need for extra manpower, or when stopping payments if the self-employed worker becomes ill or has a workplace accident.
After all, the self-employed worker will then claim that there was, in fact, an employment contract, because there is an authority relationship. Of course, that then does need to actually be the case, but in many cases it is. We see plenty of case law confirming this.
In that way, the self-employed worker can still claim the benefits of an employment contract, dismissal protection, and the statutory severance payments. Terminating the “employment contract” for underperformance will then rarely succeed, because in such cases there is usually no file built up.
The employment-law claims in such a case can relate to:
- Continued payment of wages (during illness or absence of work);
- Holiday allowance and days;
- The obligation to continue paying wages and to reintegrate in the event of illness;
- Pension (industry pension fund (Bpf) or participation in company pension);
- CAO allowances and other entitlements;
- Entitlements under the employer’s internal arrangements
Would you like advice on the safe engagement of self-employed workers and support in drafting the right self-employment contracts? Then join our SME legal Masterclass on 1 December, ‘Working with flexible workers and self-employed workers’.
Corporate lawyers Hella Vercammen and Marit Mulder will explain the basic rules of the game and teach you what to look out for when drafting and complying with the various flex-worker and self-employed contracts. This will allow you to make optimal and safe use of the right flexible workers. This is based on recent legislation, such as the Labour Market in Balance Act (WAB), the government’s new plans for self-employed workers, and case law.
You can also book on-site training on the safe engagement of self-employed workers, or request an advisory session for your client in which we check whether they are working safely with self-employed workers, via info@thelegalcompany.nl or 020 345 0152.
