Cleaners could be hired by households through the Helpling platform. Transactions ran through the platform, which received a commission on every cleaning assignment. The Supreme Court has ruled that, for classification as an agency work contract under Section 7:690 of the Dutch Civil Code, it is not necessary for the hiring of an agency worker to take place within the context of the hirer’s profession or business. On this basis, the Supreme Court ruled that households can indeed be classified as hirers, and that in this case an agency work contract existed between the platform and the cleaners. The Court of Appeal’s ruling that the cleaners were agency workers therefore stands.
Facts
Helpling operated as a digital brokerage platform for domestic cleaning services. The platform worked as follows. Both a household and a cleaner could create a profile. The cleaner set their own hourly rate, within a minimum and maximum set by Helpling. A household could offer a cleaning assignment to one or more cleaners meeting its search criteria. The household then decided who would be offered the work.
After the appointment, Helpling asked the cleaner to confirm the work had been carried out as planned. Once confirmed, Helpling automatically drew up an invoice on the cleaner’s behalf, which was then sent to the household. Helpling received a commission of 23% on repeat assignments and 32% on one-off assignments.
Helpling referred to the agreement with the cleaner as a “user agreement”. This agreement was not recorded in writing. The relevant provisions governing performance were set out in the general terms and conditions that applied between Helpling and the cleaner, and between Helpling and the household. Helpling could amend these terms and conditions, and did so on several occasions.
The FNV trade union took the position that an employment contract or agency work contract existed between Helpling and the cleaners working through its platform, and that Helpling was required to apply the Cleaning Industry CLA.
The Court of Appeal ruled that agency work contracts existed between Helpling and the cleaners, with the households acting as hirers. Both Helpling and FNV appealed this ruling to the Supreme Court.
Ruling
The legislature intended other triangular relationships beyond the “classic agency relationship” to also fall within the scope of Section 7:690 of the Dutch Civil Code, provided the statutory definition of an agency work contract is met. The legislative history of Section 7:690 does not explicitly address whether “hirer” should be understood to mean exclusively a professional or business hirer. It cannot therefore be inferred from the legislative history that additional requirements apply for an agency work contract to exist beyond those set out in the law, nor that the legislature intended that the provision of workers could only take place within the context of the hirer’s profession or business.
At EU level, agency work is regulated by the Temporary Agency Work Directive. Under Article 1(1) of that Directive, it applies to workers with an employment contract or employment relationship with a temporary work agency who are assigned to user undertakings to work temporarily under their supervision and direction. The EU concept of “hirer” is limited to user undertakings within the meaning of the Directive, but the Directive does not preclude a national scheme on agency work that also covers cases where the hirer is not a user undertaking within the meaning of Article 1(2) of the Directive.
Conclusion
The Supreme Court ruled that neither the legislative history nor the structure of the law supports the view that an agency worker can only be provided to a hirer with a profession or business. According to the Supreme Court, the Court of Appeal therefore correctly ruled that households can act as hirers, and that an agency work contract existed between Helpling and the cleaners in this case.
For the ruling, click here (in Dutch).
Do you have questions about agency work contracts and/or platform work? Please feel free to contact one of our employment lawyers.
