NL: Bill clarifying the assessment of employment relations and legal presumption

 

Last Friday, Minister van Gennip introduced a new bill into internet consultation: the bill clarifying the assessment of employment relations and legal presumption. The bill contributes to restoring the balance between working with the self-employed and as self-employed on the one hand, and working with and as an employee(s) on the other. For example, the bill is intended to combat bogus self-employment, but it also aims to provide more clarity for the self-employed and employers about how they can perform work without an employment contract.

The measures

The bill is part of the labour market package presented in April with coherent measures for more security for workers and more agility for entrepreneurs and introduces two measures:

1. Clarification of employment relationship assessment; and
2. Legal presumption of employment contract.

 

The clarification of the assessment of the employment relationship aims to clarify the 'working in the service of', or the 'authority' of Article 7:610 of the Dutch Civil Code. At present, it is difficult in practice to distinguish between employees and the self-employed, and this distinction is frequently discussed in case law. The government proposes to include three elements in Article 7:610 of the Dutch Civil Code:

1. Work-related management: is there a power of instruction and can the displaying person control the activities and possibly intervene?
2. Organizational embedding: are the activities part of the core activity of the organization, do they have a structural character and are they carried out side-by-side with employees who perform similar work?
3. Working for own account and risk: are the financial risks and results with the worker, is the worker responsible for the tool(s), does the worker come out independently and is it a short assignment or an assignment limited in a number of hours per week?

 

By recording which indications and contraindications for 'working in the service of' may be involved, workers and employers are offered tools to qualify an employment relationship. The aim is to increase clarity, but also to promote consistency in the way in which employment relations are assessed.

The second measure introduced by the bill is a civil presumption. With an hourly rate below € 32.24 (reference date 1 July 2023), it is suspected that there is an employment contract. If a worker can prove that the hourly rate is below this amount, then it is presumed that there is an employment contract. The burden of proof to prove that there is no employment contract then falls on the employer.

The emergence of this legal presumption should make it easier for workers to enforce an employment contract and thus strengthen the legal position of vulnerable self-employed persons. With this, the government wants to combat bogus self-employment.

Internet consultation

The bill has been put into internet consultation and can be viewed here. Suggestions and proposals can be made for the bill until 10 November 2023. After the internet consultation, the Council of Ministers will decide how and in what (possibly adapted) form the bill will proceed. Of course we will keep you informed of the process.

 

For further information, please contact:

Ron Andriessen, Partner

Labré advocaten, Amsterdam

e: ron.andriessen@labre.nl

t: +31 20 3052030

 

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