When assessing whether someone is an employee or self-employed, entrepreneurship remains a criterion in its own right, in addition to whether someone is directed in the work and works at his or her own risk. Characteristics include, for example, whether someone pays VAT, invests in their own business or spends time and money recruiting clients. The bill Verduidelijking beoordeling arbeidsrelaties en rechtsverm presumption (Vbar) is adapted to the recent Supreme Court ruling in the Uber/FNV case.
Bill Vbar
In the current version of the Vbar bill, it looked at, on the one hand, 5 criteria around direction in work and, on the other, 5 criteria about working at one's own risk. Only when those criteria were balanced, it looked at whether a person acts as an entrepreneur outside the employment relationship. This is the so-called 'external entrepreneurship'. With the proposed change, external entrepreneurship is given full weight, in addition to management in the workplace and working at one's own risk.
Supreme Court ruling
The Supreme Court recently indicated in the Uber/FNV case that there is no order of precedence between the various points of view that may indicate an employment contract or self-employment. With the proposed amendment, the government brings the bill in line with this ruling.
Legal presumption
The Vbar bill additionally introduces a legal presumption of employee status. If a worker is paid less than a certain hourly rate, he or she can claim to be an employee. It is then up to the client to prove that there is no employment contract. This part of the bill remains unchanged.
Enforcement
For enforcement, the amended bill has no consequences. The Tax Authority already currently enforces false self-employment in this way, namely taking into account current laws, regulations and case law. As a result, it is already the practice to weigh all criteria to distinguish genuine self-employed persons from employees who belong to salaried workers.
As a result of the lifting of the enforcement moratorium, the labour market is in flux. For instance, some organisations are actively adapting the way they work so that an assignment can be filled by a self-employed person. There are also organisations in healthcare, education and childcare, for example, that have convinced workers - who may previously have been working as bogus self-employed persons - to become salaried employees. Self-rostering, flex pools and attention to a good work-life balance respond to the need for flexibility felt by many workers.
Tip: Here find the progress letter Working with and as self-employed(s), recently sent to the House of Representatives.
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