Freelance update

Assessment of Employment Relationships and Legal Presumption (Clarification) bill (VBAR)

The Assessment of Employment Relationships and Legal Presumption (Clarification) bill (VBAR) was submitted to the House of Representatives on 7 July 2025. The VBAR will most likely enter into force on 1 July 2026. An employment relationship exists where there is pay, personal work and authority. The proposed VBAR legislation aims to further clarify (i) the criterion of "working in the service of " (authority) and (ii) introduces a presumption of law.  

To clarify the term "working in the service of"  an assessment framework will be introduced which uses two main elements to consider the "authority" aspect. The main elements are: "work-related organisational management" (W element) and "working at own risk and expense" (Z element). The intention is that these elements will be laid down by law in the VBAR legislation. Each element comprises 5 indicators to further differentiate the main element. The VBAR legislation does not specify what weight should be given to the indicators. Further details about the indicators will be set out in a forthcoming Order in Council (AMvB). The explanatory notes to the VBAR bill already provide insight into the likely explanation of the indicators, but these could still change in the Order in Council.  

When assessing the working relationship, the main element of the "work-related organisational management" (W element) should be assessed first under the VBAR legislation. If the W element is missing, there is no employment agreement and the assessment ends there. If the W element exists to more than a minor extent, the relationship could be one of employment. For this reason it is then assessed whether the individual is "working at own risk and expense" (Z element). This approach makes it possible to compare instructions given to manage the work (W element) with the elements of working independently (Z element). A determination is then made about where the emphasis lies in the working relationship. Both elements (W and Z) may weigh equally when it comes to determining whether someone is employed or self-employed.

The VBAR legislation further introduces a presumption of law: at an hourly rate of less than €36 (reference date 1 January 2025), a worker may assume that the relationship is one of employment. This presumption is refutable so an employment contract is not automatically created but it makes it easier for the worker to demand an employment contract from the employer or via the courts. There is no presumption to the contrary where the hourly rate is more, nor is the rate a statutory minimum for the self-employed. The above hourly rate will be indexed twice a year.    

Despite the advice of the Council of State and critical comments made during the internet consultation, the outgoing Minister of Social Affairs and Employment (SZW), Eddy Van Hijum, is proceeding with the VBAR bill.  

Letter to Parliament on Pseudo Self-employment and Pensions

Outgoing Minister Eddy van Hijum (SZW) has informed the House of Representatives of the results of discussions with the social partners on pseudo self-employment and pension accrual. This revealed that the principle of "no contributions, but still entitled’’ means that employees can accrue pension rights even if their employer has not made any pension contributions. This also applies to pseudo self-employed persons who are subsequently classified as employees, meaning that pension rights are accrued from the first day of employment. 

If a pseudo self-employed person submits a pension claim, this can lead to financial consequences for employers and pension funds. The pension fund has to try to collect the unpaid contributions from the employer. If the fund can no longer collect the contributions, for example, due to a limitation period or because the employer no longer exists, then the cost of the pension entitlements will be borne by the fund collective. Especially if the pseudo self-employed persons only make a claim upon retirement, it may be difficult to collect contributions from employers. 

The principle of "no contributions, but still entitled’’ is not  unlimited. Exceptions to the principle of "no contributions, but still entitled" are conceivable if, for example, the self-employed person made the conscious choice to be self-employed or there is malicious intent involved. Pension funds may also include conditions in their rules to exclude any future cases in which pension entitlements are accrued by pseudo self-employed persons on the basis of the principle of "no contributions, but still entitled’’, provided that there is still sufficient protection for vulnerable groups. 

Outgoing Minister Eddy van Hijum has discussed with the social partners and the Pensions Federation that it would therefore be desirable to include a clarification of the scope of "no contributions, but still entitled" in the explanatory notes to the VBAR legislation and that it cannot be ruled out that the principle of "no contributions, but still entitled" may not always apply to pseudo self-employed persons. Restricting pension rights is difficult due to the right of ownership but is possible under strict conditions. Outgoing Minister Eddy van Hijum emphasized the importance of monitoring and further discussion with the parties concerned.