Advocate-General advises:

‘Parties’ intentions may no longer play a part in assessing self-employment’

Not authority or free substitution should be leading but the fact that someone has been embedded in the organisation. The Advocate-General holds the view that the intentions of both parties should no longer be considered in assessing self-employment.
It is curious that the Advocate-General considers the ‘self-employment’ matter this early in these cassation proceedings, as it concerns an action filed by a benefit recipient who has argued that her participation job is in fact an employment contract. Cassation proceedings frequently are a first step towards legal amendments, rather than a specific case. The Advocate-General has seized this opportunity to delineate employment contracts from other work relationships. In Groen v. Schoevers the Supreme Court held that both the parties’ intentions and the actual execution are relevant in assessing the work relationship (this case concerned an independent contractor who upon termination claimed that there had been an employment contract – with which the Court disagreed, on the above considerations). The Advocate-General thinks it undesirable that parties can keep their  relationship outside the realm of the work relationship; in her advice, the Advocate-General claims that high rates, invalidity insurance, and pension accrual do not make a difference. The erosion of protection under employment law (a steep rise in the number of people working outside permanent employment) should be stopped as it increasingly poses a social problem. Like the Committee Borstlap, the Advocate-General would like to diminish the effect of ‘parties’ intentions’.

She would like the following factors to be decisive:

1. The organisational embedding; and
2. The working individual’s position of dependence.

Re. 1. So far the definition of ‘organisational embedding’ is limited to ‘the consideration whether the duties form an essential part of the business operations’. But this definition should be more detailed and specified.

Re. 2. Genuine independent contractors must also work independently! In the absence of entrepreneurship, there will be a relationship of authority and thus an employment contract. The lack of a negotiating position in determining wages/rates is a strong indication of a relationship of authority. Another question that for now goes unanswered is how the decisive factors listed under 1 and 2 relate to each other

As mentioned earlier, the Advocate-General’s advice looks like an attempt to resolve a long-drawn-out issue. However, timing seems a little off, as following the Committee Borstlap’s advice the ball is currently in the court of politics.