The agreement between a professional conductor and an association (a small amateur choir) does not qualify as an employment contract. The conductor could arrange a substitute, her fee included VAT, and there was no relationship of authority, since the choir’s members could not give her instructions on substance.
Facts
The conductor began working for the association in November 2019. Her duties included directing the choir at performances and training the choir. She was also responsible for the choir. Following a conversation between the association’s board and the conductor in February 2021, the board terminated the agreement with her by letter on 26 March 2021. The conductor then argued that an employment contract existed.
Ruling
The hallmarks of an employment contract are: work performed for pay, in the service of another party (the employer). The subdistrict court reasoned as follows.
In principle, the conductor was required to perform the work personally, but she was allowed to arrange a substitute on an incidental basis, provided the substitute had the same level of expertise. This means she could decide for herself whether she would be substituted, and if so, by whom.
Moreover, the conductor received a fee that included VAT. It was not agreed that she would be paid for periods without rehearsals or performances. Under the agreement, she was only to be paid if she had actually performed work, and this is how it was carried out in practice.
On the question of a relationship of authority, the subdistrict court ruled as follows. Although the association’s board arranged the activity programme, location, times and dates of rehearsals and performances, this had a practical background. It had little to do with a relationship of authority, and much more with the availability of the choir and everyone else involved.
The conductor further held artistic direction of the choir and ultimately determined the repertoire, though the association did have some influence over this. It was also relevant that the association is a relatively small choir made up of amateurs. None of the board members are paid for their activities. The association engaged the conductor because it sought the knowledge, skills and experience of a professional conductor. The board members did not have that knowledge themselves, meaning they were not in a position to give instructions. The subdistrict court ruled there was no relationship of authority. The conductor therefore had no employment contract and was not an employee.
For the full ruling, click here (in Dutch).
Questions about the above?
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