In early November, the Council of State issued its advisory opinion on two bills (Vbar and Flexworkers). The Council raised several concerns and called for clarifications and amendments, meaning both bills still have a considerable way to go. Given the connection between the two proposals, the advice on both was issued at the same time.
Clarification of the Assessment of Employment Relationships and Legal Presumption Act
The bill on clarifying the assessment of employment relationships and the legal presumption of employment aims to set out more clearly when an employment contract exists. It does so by further defining the criterion of “authority”. The starting rule is that an employment contract exists where there is work, pay and authority. The aim is to combat false self-employment and thereby offer workers more legal and income security, such as pension accrual or continued pay during illness.
The bill elaborates further on the concept of authority (working “in the service of”). Authority is present where: the work performed forms part of the employer’s core activities, the employer has the power to give instructions, and the work is not carried out at the worker’s own risk. If these requirements are met, the worker qualifies as an “employee”. In addition, the legal presumption of employment will be enshrined in law: where the hourly rate is below €33, an employment relationship is presumed.
The Council of State takes the view, however, that this bill only partly resolves the bottlenecks it seeks to address. The assessment framework relating to “working in the service of” appears too rigid and precise, whereas assessing whether an employment relationship exists in practice requires looking at each individual case. Moreover, the Council doubts the added value of enshrining the legal presumption in law, since few workers are likely to actually start legal proceedings.
The More Security for Flexworkers bill proposes measures to give workers on flexible contracts more income security. Its aim is to give flexworkers a better prospect of a permanent contract by narrowing the differences between flexible and permanent contracts. Among other things, it introduces a “bandwidth contract”, under which the difference between the minimum and maximum number of hours may not exceed 30%. The government also wants to ban zero-hours contracts.
The Council of State notes that, alongside the need to protect workers, there are also significant staff shortages. As the permanent contract itself is left unchanged, the Council considers the bill insufficient and expects it to have only limited practical effect.
Overall, the Council of State advocates a flexible and accessible labour market. As things currently stand, the bills fall short of that goal. The permanent contract itself would need to be adapted to accommodate both employers and employees. It therefore remains to be seen whether these bills will ultimately be enacted. There is still a long way to go, and the current rules remain in force for now.
