Introduction
Last week, the Minister of Social Affairs and Employment, Karien van Gennip, published and consulted on the Employment Relations Assessment and Legal Presumption Act.
The proposal should clarify the distinction between employees and the self-employed. We have listed the most important changes.
The legal standard to distinguish employees from the self-employed is currently an open standard that has been coloured by case law.
The proposal clarifies the most distinctive legal requirement ‘working in the service of’ (authority) from Article 7:610 of the Civil Code. Case law has been brought together, structured and compressed on the basis of three main elements:
- work-related subordination;
- organizational embedding; and
- work at your own expense and risk.
These key elements are further fleshed out by indications and the way in which testing should take place is also structured.
The aim of this measure is to increase clarity for workers, employers and clients, implementing organisations (such as the UWV, the Tax and Customs Administration and the Dutch Labour Inspectorate) and the judiciary and to promote consistency in the way in which employment relationships are assessed. A clarification should make it clearer for the market, the implementing organisations (including for enforcement) and the case law when it is possible to work as a self-employed person or employee.
Legal presumption hourly rate
The proposal introduces a civil ‘legal presumption’ at an hourly rate below € 32.24 (reference date 1 July 2023). If a worker can prove that his or her hourly rate is lower than € 32.24, it is suspected that there is an employment contract and it is up to the employer to prove otherwise (that there is no employment contract).
The aim of the measure is to make it easier for workers at the base of the labour market to claim an employment contract from the employer and – if necessary – from the court. In addition, the legal presumption has a preventive effect because, when working at a rate below the standard, it is better assessed than at present whether the job can be done by a self-employed person, or whether there must be an employment contract.
Consultation
The bill is currently under consultation. This means that the bill can be responded to. This is possible until 10 November 2023. At the end of the consultation period, the responses will be reviewed and, if necessary, the bill will be amended.
Advice for practice
The new legislation can have far-reaching consequences for employment law. Our advice is to examine existing (model) agreements of assignment and hourly rates and determine whether these should be adjusted.
For further information on this article, please contact a member of the Employment Law department at Milestone Advocaten:
Brigit van de Ven-Meier, moc.netacovdaenotselim@nevednav , +31 6 23 93 65 79
Caroline van der Zwet, moc.netacovdaenotselim@tewzrednav , +31 6 29 59 71 64
Frouke Vlaskamp, moc.netacovdaenotselim@pmaksalv, +31 6 50 60 23 15
Caroline Huizinga, moc.netacovdaenotselim@agniziuh , +31 6 30 62 82 82
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