In October 2023, a first draft bill on the Act Clarifying Assessment of Employment Relationships and Legal Presumption (VBAR Act) was published and submitted for internet consultation. This bill aims to put an end to the problems (and lack of clarity) surrounding pseudo self-employment. This draft bill received many responses (1,111 reactions from individuals and organisations). Most criticism came on the term ’embedding in the organisation’, which was unclear according to many. Subsequently, the draft bill was adjusted on certain points – incidentally not on the aforementioned term – and sent to the Raad van State on 27 June last, with priority for advice. Remarkably, the amended draft bill was also already made public on 3 July last, which is not usual.
In particular, the Raad van State is now reviewing whether the draft bill is practicable and whether it could conflict with the Constitution. The advice of the Raad van State is not binding. The minister concerned must then let it be known how he incorporates the advice into the actual bill. The bill can then go to the House of Representatives, possibly with comments from the minister, for a vote. However, this is not required. Only when that happens, even more will become clear about the content of the bill. In any case, the intended entry into force date of the VBAR Act is 1 January 2026. Therefore, whether that will take place (and be feasible) in this form is still (completely) unclear. The following provides a brief summary of the VBAR Act.
Part 1: WZOP test
The VBAR Act consists of two parts. The first part aims to clarify, using the so-called ‘WZOP test’, when a person can be hired as a contractor. This includes:
- ‘W‘: refers to indications that indicate working as an employee (work-related and organisational direction):
- the ‘client’ is authorised to give directions and instructions on how the ‘contractor’ should perform the work and the ‘contractor’ must follow them;
- the ‘client’ has the ability to monitor the work of the ‘contractor’ and is authorised to intervene on that basis;
- the work is performed within the organisational framework of the ‘client’ organisation;
- the work is structural in nature within the organisation;
- the work is performed side-by-side with employees performing similar work.
- ‘Z‘: refers to indications that indicate self-employment within the employment relationship (working at own account and risk):
- the financial risks and results of the work lie with
- the ‘contractor’;when carrying out the work, the ‘contractor’ himself is responsible for tools, aids and materials.
- the ‘contractor’ possesses specific training, work experience, knowledge or skills, which are not structurally present in the organisation of the ‘client’;
- the ‘contractor’ acts independently during the work;
- there is a short duration of the assignment and/or a limited number of hours per week.
- ‘OP‘: are characteristics that indicate entrepreneurship of the person of the ‘contractor'(located outside the employment relationship) for similar work.
- the ‘contractor’ spends time and/or money acquiring a reputation and finding new customers or clients;
- the ‘contractor’ has business investments of some size;
- the ‘contractor’ behaves administratively as an independent entrepreneur (is registered with the Chamber of Commerce, is a VAT entrepreneur and/or is entitled to the tax benefits of entrepreneurship (such as entrepreneurial facilities)).
If the ‘W’ is missing in its entirety, then an assignment can be performed by a self-employed person and there is no employment. If the ‘W’ is (partly) present, then ‘Z’ should be looked at next. If ‘Z’ does not sufficiently counterbalance ‘W’, then an assignment cannot be done ‘outside employment’. If ‘Z’ outweighs ‘W’, then it can. Only if ‘W’ and Z are balanced will ‘OP’ be considered.
Part 2: Legal presumption
The second part of the draft bill includes a ‘legal presumption of employment’. If someone is hired as a contractor for less than EUR 33 per hour, there is a presumption of employee status. With this legal presumption, the legislator tries to protect vulnerable self-employed persons from false self-employment. Incidentally, the tax authorities cannot invoke this legal presumption. If the worker effectively invokes the legal presumption in the civil-law qualification as an employment contract, an employment relationship will also exist for wage tax purposes.
For questions on false self-employment, Annemeijne Zwager is happy to be available.
