The bill aimed at clarifying the assessment of employment relationships and the legal presumption (in Dutch: wetsvoorstel verduidelijking beoordeling arbeidsrelaties en rechtsvermoeden (“VBAR”) is becoming more concrete. The online consultation on the bill has been completed, and the Council of State has issued a critical opinion on the bill as of 11 November 2024. The current expectation is that the bill will come into force on 1 January 2026. It is important to understand the implications of this bill and ascertain whether it will bring about significant changes to current practice.
For an explanation of the concept of pseudo self-employment and how the Tax Authorities will assess this from 1 January 2025, you can read our website article on this topic here.
A new qualification process will be introduced
Currently, an employment relationship must be qualified on the basis of the criteria formulated by the Supreme Court in the ‘Deliveroo’ judgment. Read our full website article on the Deliveroo ruling here. The court will assess all these points of views holistically (in relation to one another).
The government aims to provide greater clarity regarding the qualification of an employment relationship. The VBAR should start providing this clarity. The VBAR proposes a more mathematical approach to the qualification of the employment relationship.
The employee is indicated with the letter W. The following are characteristics of an employee: (i) the employer provides instructions and oversees the employee’s work, and (ii) the work is of a structured nature. The contractor is indicated by the letter Z. The following characteristics are typical of a contractor: (i) responsibility for materials used, (ii) specific knowledge for which you are hired and (iii) bearing financial risks.
If the worker displays a greater number of characteristics associated with the contractor, then they are to be classified as such. Should the worker display a greater number of W characteristics, they will be classified as an employee.
In the event that both characteristics are balanced, the judge will consider additional characteristics, indicated with the letters OP. These characteristics include (i) working for multiple clients, (ii) making investments in your own business and (iii) acting in an administrative capacity as a contractor (e.g. registering with the Chamber of Commerce and issuing invoices). The government is responsible for providing further clarification on when the W and Z characteristics are balanced, and when the OP characteristics therefore also apply.
Please refer to the diagram below for a graphical representation of the aforementioned letters.
The VBAR also contains a legal presumption based on an hourly rate. If you earn less than (set for now at) EUR 33 per hour, you (as a worker) can invoke the legal presumption. All you then have to prove is that you earn less than EUR 33 per hour. It is then up to the employer to prove that there is no employment contract. This legal presumption can only be invoked by the worker. Thus, the Tax Authorities or a trade union cannot invoke the legal presumption.
On 11 November 2024, the Council of State issued an opinion on the VBAR. The Council of State has expressed reservations about the bill, stating that it will have only a limited impact on addressing the issue of pseudo self-employment. The Council of State has stated that the primary reason for this is that the bill primarily codifies existing legislation, which has been further developed through case law. Furthermore, the Council of State has cautioned that a significant rise in the number of contractors with employment contracts could have far-reaching implications for employers and pension funds. The Council of State recommends that the government devote greater attention to this matter.
In conclusion, it is yet to be seen whether this bill will provide the desired clarification. The responsibility for amending the bill now rests with the current minister of Social Affairs and Employment. Following this, the bill will be sent to the House of Representatives for consideration, after which it will also have to be approved by the Senate. It is therefore unclear whether the deadline of 1 January 2026 will be met.
If you require further advice or guidance, we are happy to assist. Please do not hesitate to contact us.
