Independent contractors 15 April 2018 Arco Siemons Wieringa Advocaten

Employees vs. contractors - Minimum wage - Payment during illness - Social security - Paid holiday - Termination protection (“preventive system”)

Employees vs. contractors - Statutory entitlements - Often: extra entitlements under cba (pension!)

Employees vs. contractors nothing

A (very) brief history Before 1999: - rigid system - only one temporary contract - preventive system (since 1945)

A (very) brief history 1999: overhaul (“Flexibility and security”) - more consecutive temporary contracts - temp agencies rise - payroll companies - preventive system stays

A (very) brief history Result: - flexible layer of employment - “fixed” layer becomes more impenetrable - flex is too flex, fixed is too fixed

A (very) brief history 2015: new major overhaul (“Work and security”) - limitation on temporary contracts - entitlement to severance for all (after two years) - terminations more formal - preventive system stays

A (very) brief history Result so far: - fixed is even more fixed - fixed layer remains impenetrable - legislation failed, low predictability (civil, tax)

Case law Fragmented case law on nature of contracts Contractors sometimes employees - depends on number of circumstances - case by case, low predictability

Case law Some contractors indeed deemed employees “sham-independency”

What now? Proposed legislation: - security for contractors (minimum rate, pension, insurance - legislation to grant security about nature or contract

And until then ... .... we are a nation at sea