New development in sham independence debate

VVD, D66, CDA and SGP have submitted an initiative bill as an alternative to the VBAR: the Self-employed Workers Act. With this, the parties want to provide a legal framework that also provides sufficient certainty in advance about the qualification of the working relationship. It has more regard for the intention of the parties and respects the need of many self-employed workers for freedom and autonomy. The law is inspired by the Belgian Labor Relations Act. The bill consists of three tests.

The Self-Employment Test

The core of this new law is the so-called self-employment test. Whereas the DBA Act and the VBAR focus on the employment relationship afterwards, this test offers much more clarity beforehand. The test looks at whether someone is actually an entrepreneur. Important factors include:

• whether the self-employed person has registered with the Chamber of Commerce and has a VAT number;
• The self-employed person has several clients;
• he invests in his own business assets;
• and has a provision for disability and pension.

Working Relationship Test

This test assesses which elements are dominant in the working relationship and would be a barrier to performing that working relationship independently. The following questions are answered:

• is there a free choice of cooperation?
• is the self-employed person allowed to determine his own working time and leave?
• does the self-employed person have a high degree of freedom to perform the work as he sees fit?
• can the principal exercise direct hierarchical control?

Sectoral legal presumption

The VBAR already introduced a legal presumption linked to a minimum hourly rate. If someone earns less than this minimum hourly rate, an employment contract is presumed. The Self-employment Act introduces an additional legal presumption focusing on certain sectors with a high risk of false self-employment. In Belgium, for example, these sectors are construction, cleaning and agriculture. These sectors and the criteria should be further elaborated.

Assessment committee

The bill also proposes the creation of a committee that can advise and decide on the qualification of the working relationship. This can be at the initiative of the parties. This opinion should be binding on agencies such as the Tax Office or the UWV. It is not the intention that all relationships should be assessed in this way in advance because that is not feasible, but publication of these judgments should naturally lead to regulation.

Own responsibility instead of employer risk

An important difference from the current VBAR bill is that the intention of the parties again matters. In addition, the responsibility seems to be shifted from the client to the self-employed worker himself. The bill is now going into so-called “pre-consultation. The initiators publish the draft memorandum of explanation and first want to process as much input from the field as possible. After that, the bill will be offered to the Council of State and then to Parliament. The VBAR has been worked on for years, the question is whether the minister will simply abandon it and embrace the new Self-employment Act.

Questions

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