What was the case about and why was it filed?
The lawsuit against Temper was initiated by the FNV and CNV unions. They argued that Temper, a platform connecting freelancers with clients, operated as an employment agency. This would mean that all people working through the platform would have to be employed by Temper under an agency contract. Interestingly, the 'Freeflexers'—the name for freelancers working via Temper—overwhelmingly opposed this idea.
What was the ruling and why?
In July 2024, the Amsterdam court ruled in favour of Temper. The judge determined that Temper is not an employment agency but an online platform facilitating connections between freelancers and clients. Therefore, there was no basis for an agency or employment contract, as the unions had claimed. The court dismissed all of the unions' claims.
The ruling followed an earlier decision in which the court had already determined that the trade unions could no longer represent the people who had worked through Temper. This judgment followed the opt-out phase, during which over 15,000 individuals who had worked through Temper had indicated that they did not want the unions to represent their interests.
The July 2024 ruling, confirming that Temper is not an employment agency, was based on the same nine criteria used by the Dutch Supreme Court in the Deliveroo case.
These criteria can be incredibly useful for you as a client, especially now that the enforcement moratorium is being lifted as of 1 January 2025. You can use these points to assess the employment relationships within your organisation.
What can you, as a client, learn from this ruling when evaluating employment relationships within your organisation?
Starting 1 January 2025, the Dutch Tax Authority will begin actively enforcing the DBA Act again. Under pressure from the market and recent motions passed by the House of Representatives, they have adopted a risk-based enforcement strategy. This strategy follows the so-called 'layered control' model (schillenmodel).
The ‘layered model' (schillenmodel) means that if a business can demonstrate, during an initial check, that they have taken steps to prevent false self-employment, the Tax Authority will not pursue further investigations. They will not move beyond the first layer of checks, focusing mainly on businesses that have not properly organised their use of freelancers.
The Tax Authority's advice is to ensure that this first layer is properly set up. This can be done in two steps:
- Document how freelancers are engaged in your organisation and specify the nature of the working relationships. We can assist with this through our step-by-step guide.
- Assess these relationships using legal precedents (such as the Deliveroo ruling) and the DBA Act. We have developed a handy scorecard that can serve as a guide.
This shift towards risk-based enforcement offers a calmer period of at least one year, during which businesses can work on complying with freelancer regulations.
Would you like personal assistance with the above steps? Our team is happy to help. Contact us via this form and we'll reach out to you.On 10 July 2024, the Amsterdam court ruled in the case brought by the trade unions FNV and CNV against Temper, deciding that Temper is an online platform for flexible work, not an employment agency as the unions had claimed. All claims brought by the unions were dismissed. This ruling can be useful for you as a client when assessing the various employment relationships within your organisation, a particularly relevant topic now that the enforcement moratorium will be lifted as of January 2025.
