On this page, you find the position of Temper B.V. in court case C/13/692040 / HA ZA 20/1079, started by FNV / CNV at the Court of Amsterdam in The Netherlands.
In October 2020, unions FNV and CNV started proceedings against Temper at the Amsterdam District Court. Temper allows you to work as a self-employed person in various sectors. The unions believe that FreeFlexers are agency workers or employees, not self-employed.
In the proceedings, the unions ask the court to determine the legal relationship between Temper and the FreeFlexers. Below is Temper's perspective on this.
FNV and CNV first ask the court to establish that the relationships between Temper and the FreeFlexers are temporary agency contracts (within the meaning of Section 7:690 of the Dutch Civil Code). If that were the case, Temper would have to apply the Collective Labor Agreement for Temporary Workers and the legislation for temporary work (the Waadi), among other things, by paying the collective wage.
Temper's position is that Temper is not an employment agency, and the FreeFlexers are not agency workers. The Collective Agreement for Temporary Workers then obviously does not apply, nor do the other agency work rules. Temper also feels that FreeFlexers would not benefit from this. Being an agency worker is not a good or secure position: you have hardly any social protection or social security. Next to that the choice and flexibility to decide yourselves when and where you work would disappear. Temper would suddenly, just like other temporary work agencies, have to make a choice to send you to certain shifts or not or even to call you in to work mandatorily. According to Temper, being a FreeFlexer is a good position to be in. FreeFlexers earn an average €19.251 per hour - well above the collective bargaining agreement - always determine how much and where they work and are collectively insured for sickness, liability and accidents.
The unions take into account that the court will not find that temporary agency contracts exist. For that case ("in the alternative"), they ask the court to rule that FreeFlexers are then employed by the various clients using the Temper platform.
In this view of the unions, in which clients employ FreeFlexers, the unions believe that there is underpayment because mandatory collective bargaining agreements of the sectors to which the clients belong (AVV collective bargaining agreements) would be violated. According to the unions, Temper should pay the difference to the FreeFlexers.
Temper's position is that FreeFlexers are not employees but self-employed, partly because they have the freedom to decide when and with whom they want to work (a freedom they would lose if clients employed them). And as Temper has written above, FreeFlexers through Temper earn better than the collective bargaining wage to which employees or agency workers would be entitled. Therefore, Temper believes that FreeFlexers should be free to earn extra through the Temper platform as self-employed. Moreover, anyone who wants to be employed by a client can do that. There is no barrier or penalty - Temper will even send an apple pie. In 2022, we sent tens of apple pies.
If all of the above were not true ("extremely subsidiary"), then the unions are asking the court to find that FreeFlexers are "employee-like self-employed. In more legal terms, that would constitute 'the provision of labour' as referred to in the legislation for, inter alia, temporary agency work (the Waadi), which would require Temper to pay the collective bargaining wage (again).
As Temper has already explained above, FreeFlexers already earn a remuneration that is above CAO. Therefore, according to Temper, these claims lead nowhere.
The unions also find that Temper is alleged to have violated other rules of the temporary employment law. For example, Temper would make prohibited deductions from workers' wages (section 3 or 9 Waadi). This is not true because the clients pay Temper, not the contractors.
Also, Temper would have to register in the trade register as an employment agency. Of course, this is unnecessary if Temper is not an employment agency.
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1 €19.25 is the average hourly tariff of 2022 in all verticals on the Temper platform in the Netherlands.