Update on the freelance file

Helpling

Cleaners who provided household help services through the now defunct Helpling platform were, in fact, temporary employment agency employees. This was the ruling of the Supreme Court in a long-running case about the position of cleaners in the platform economy.

Helpling described itself as a digital notice board for odd jobs around the house, but the FNV trade union considered the business to be an employer who should therefore provide these cleaners with protection in the event of sickness, for example. In 2021 the Amsterdam Court of Appeal concluded that cleaners who worked via Helpling were temporary agency staff. The Supreme Court has now upheld that ruling.

Although the Supreme Court does not take it as far as the opinion of Advocate-General de Bock, who considered that the cleaners on Helpling were not just temporary staff but fully-fledged employees. According to the advisor to the Supreme Court, private individuals hiring a cleaner, after all, did not qualify as a "hiring party" in the same way as companies hiring in temping agency staff. The Supreme Court holds that private individuals can certainly be deemed ‘hiring parties’.

Helpling should have withheld and remitted wage tax and employee insurances for the cleaners, just as other employment agencies do. This also meant that the cleaners could claim all the rights of the employment agency collective labour agreement.

Alternative bill 

The VVD, D66, CDA and SGP political parties, led by Thierry Aartsen (VVD), have published a private member’s bill which is intended to provide clarity on the self-employed; as an alternative to the Assessment of Employment Relationships and Legal Presumption (Clarification) (VBAR) bill. 

Thierry Aartsen says that this legislation is based on the Belgian model which looks more closely at the self-employed person while the embedding of the work in an organisation does not play a role. The bill introduces a review framework with three tests:

1. Self-employment test: does the person who fulfils the working relationship qualify as a self-employed person?
2. Working relationship test: are there prevailing elements in the working relationship that obstruct its fulfilment by a self-employed person?
3. Sectoral presumption of law: are there additional elements applicable in the sector in which the working relationship is fulfilled indicating that it could be one of employment?

What this law also means for the self-employed is that they must provide for the risk of loss of income in the event of occupational disability and for retirement. The self employed are free to choose for themselves how they will make that provision. Thierry Aartsen notes that freedom to work as a self-employed person, legal certainty for clients and better social protection go hand in hand in this bill.

There will also be a separate committee to help assess the review framework collectively. These assessments would serve as a model and should be binding upon enforcement agencies, such as the Tax and Customs Administration.

The proposed bill was submitted for pre-consultation on 3 April. The coming weeks will be used to turn the Explanatory Memorandum into articles of law and hold discussions with organisations for the self-employed, trade unions and employers’ organisations, enforcement bodies and experts.