If you work with freekancers or as a freelancer, it is important to take into account relevant laws and regulations. In this article, we briefly discuss the current state of affairs regarding the zzp dossier and current developments.
The basis for this topic is a progress letter that the Cabinet sent to the House of Representatives on Friday, December 16, 2022. In this letter, Minister Van Gennip (Social Affairs and Employment) indicates the cabinet's wishes for the zzp dossier on the basis of three tracks. In addition, an Internet consultation was completed in the fall of 2023 on the Wet verduidelijking beoordeling arbeidsrelaties en rechtsverm presumen (Wet VBAR). Where do we stand at the moment?
The DBA Act stands for the Deregulation of Assessment of Labor Relations Act. This law was introduced in 2016 to replace the VAR, better known as the Declaration of Employment Relationship. The purpose of the DBA law was to reduce false self-employment. The legislator wanted to achieve this by giving the Tax Authorities the possibility to collect taxes and premiums not only from the self-employed, but also from clients afterwards if there was in fact an employment contract. All parties in the chain could thus be held responsible for a sham construction.
However, the DBA law quickly led to great uncertainty in the labor market, especially among clients. Clients did run the risk - unlike before - of having to pay taxes and premiums afterwards. Because of this uncertainty and unrest, the State Secretary of Finance announced an enforcement moratorium immediately upon the introduction of the DBA Act on May 1, 2016. This moratorium has been extended time and again, but more on that later.
One of the measures to create a more level playing field between employees and the self-employed is the accelerated phasing out of the self-employed deduction. In 2024, the self-employment deduction will be €3,750. The self-employment deduction will continue to be phased out over the next few years, reaching €900 in 2027. In addition, the Spring Memorandum 2024 was recently published. This memorandum states that the SME profit exemption will also be further reduced to 12.03%. In 2023, this percentage was still at 13.31%. These kinds of measures should thus ensure a more level playing field with regard to taxation.
Furthermore, a bill is also in the pipeline for mandatory disability insurance for the self-employed. Recently, Minister Van Gennip sent a letter to the House of Representatives about the disability criterion. The UWV and the Belastingdienst are still going to perform an implementation test, after which the bill will be put out for internet consultation. More information on compulsory disability insurance can be read on this page from the central government.
Clarifying the assessment of the employment relationship should make it simpler to choose the right legal form at the start of an assignment. In short, can a particular assignment be performed by a freelancer, or is it still an employment contract? To realize this, a bill is in the works (the VBAR Act). In this law, the standard “working in the service of” (authority) from Article 7:610 of the Civil Code is structured and fleshed out by three main elements:
Under these three elements, different indications will appear. In addition, the government also considers it important to look at the entrepreneurship of the worker. These are the C+ elements that are also included in the assessment of the employment relationship. These could include the number of clients a worker has per year and whether the worker makes use of tax benefits associated with entrepreneurship.
The bill Verduidelijking beoordeling arbeidsrelaties en rechtsverm presumption (VBAR) was in internet consultation from October 6 to November 10, 2023. This generated 1,111 public comments. Policy staff at the Ministry of Social Affairs and Employment are currently busy analyzing all responses and making adjustments to the bill where necessary. The intention is to send the bill to the Council of State for advice before the summer of 2024. After the summer it can then be debated in the Lower House. Whether this is feasible, we will have to wait and see.
The Cabinet has expressed its ambition to lift the enforcement moratorium by January 1, 2025. As of January 1, 2025, the Tax and Customs Administration can again impose correction obligations and additional tax assessments, possibly with a fine, in all cases when an incorrect qualification of the employment relationship is established. The starting point of the Tax Authority in this regard is that, as far as possible, workers and companies themselves take responsibility for complying with the rules correctly. Recently, a market team was started at the Tax Administration that will actively seek cooperation with market parties and industry associations.
Earlier this year, the Labor Relations Enforcement Plan 2024 was published. In this document, the Tax Authority explains what is planned for 2024. The Enforcement Plan 2025 is expected at the end of 2024.
On March 24, 2023 came the long-awaited Supreme Court ruling on Deliveroo delivery drivers. The Supreme Court upheld the judgment of the Amsterdam Court of Appeal and thus concluded that Deliveroo deliverymen are working on the basis of an employment contract. The ruling is not only relevant for Deliveroo delivery drivers, but is relevant for all organizations that work with self-employed workers. Indeed, in the Deliveroo ruling, the Supreme Court provides a list of circumstances that may be relevant when answering the question of whether someone is working on the basis of an employment contract or as a self-employed worker.
Viewed in isolation, those circumstances are not new. Some of those circumstances relate to the nature and content of the work and its performance. Another part relates more to the establishment of the (legal) relationship and the person of the person performing the work. What stands out, however, is that in its enumeration the Supreme Court seems to attach great importance to (circumstances indicating) entrepreneurship. Consider, for example, (1) the amount of remuneration, (2) the number of clients, and (3) whether the worker actually runs commercial risk. Entrepreneurship thus seems to be an important element in assessing whether someone is working under an employment contract or as a self-employed worker.
Therefore, the importance of this Deliveroo judgment cannot be underestimated. It has brought new insights and provides the Tax Office with a framework to start enforcing as of Jan. 1, 2025. In practice, several lower courts have already ruled on whether or not an employment contract exists based on this Supreme Court ruling. Through case law, things are therefore already being fleshed out. We are therefore keeping a close eye on these developments.