A presumption of law deserves more; than one indicator, that is.

The Dutch self-employed and small and medium-sized enterprises (SMEs) are in quite a volatile economic climate. Workers want to choose where, when and for what rate they work, and SMEs are searching for more temporary and self-employed workers. Digital notice boards like Temper have brought this supply and demand together.

Unfortunately, supply and demand are unintentionally at risk of being forced apart. In the Labor Market Policy Outline Letter (dated July 5, 2022), the Minister of Social Affairs and Employment outlines the contours of a 'legal presumption' to be introduced for workers. In short, someone self-employed can invoke this legal presumption under certain conditions, after which the client must prove in court that there is no employment contract. Good to tackle bogus self-employment, but the current proposal throws the baby out with the bathwater

After all, the proposed legal presumption should already be invocable if it is based on a single criterion: an hourly rate below EUR 30.00 - 35.00. Any self-employed person with a lower hourly rate would be able to invoke the above legal presumption directly. This is too short-sighted: with only an hourly rate, an employment relationship cannot be qualified, and the presumption thus becomes rather flippant. Indeed, other legal presumptions often apply more than one indicator - or so the norm seems - to invoke a presumption.  

Waiter!

The effect of such presumption is a new gap between supply and demand:

• An airy and loosely invoked presumption of law puts these SMEs at risk of a temporary worker promptly invoking the presumption of law. They will offer far fewer shifts through digital notice board companies, especially in a sector with typical "notice board occupations": hospitality, retail and transportation (see ING report). Scaling up and down quickly - necessary in any economy and especially in the current volatile situation - will become much more difficult for these companies.
• With a lack of shifts, the self-employed are pushed out of these sectors and must unwittingly rely on temp agencies and other less suitable alternatives. In any case, they will no longer enter the hospitality, retail and transportation sectors. This is precisely what a large group of self-employed people do not want. The Collective Labor Agreement for Temporary Workers does not suffice, and this group wants to decide for themselves, where they work, when they work, and at what rate they will work for.

How then? One possible solution

Suppose a legal presumption was to offer a solution. In that case, the hourly rate as the only indicator is far from sufficient for a legal presumption as to whether a working relationship exists. Even the European Commission recognises that a legal presumption cannot be established on a single indicator. For example, its proposal for a directive on platform work listed five criteria, at least two of which must be met for the legal presumption of an employment relationship to arise. It is unclear why the Minister chooses a single indicator now.  

For that reason, adding at least one other indicator would be more logical. For instance, one similar to existing legislation regarding the legal presumption of working hours. For on-call workers, the legal presumption of a fixed-term employment relationship only arises after a minimum employment period of three months.

The criterion of such a period would also be a welcome addition to the minimum hourly rate for the Minister of Social Affairs' proposal before the legal presumption can be invoked. In this way, we provide SMEs with sufficient security to continue to be able to create more and better temporary shifts, and we do not unintentionally close off sectors to the self-employed.

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