Karien van Gennip, Minister of Social Affairs and Employment, released on December 16, 2022 the 'Progress letter working with and as self-employed(s).' shared with the House of Representatives. The letter builds on the outline letter labor market of July 5, 2022. The minister sets out all plans along three lines: a more level playing field, clarification of the assessment of employment relationships, and improvement of enforcement on false self-employment.
The labor market is in need of maintenance. The group of self-employed workers has grown in recent years and this growth is expected to continue. The government signals that this leads to limited protection against disability, less control over working conditions and inadequate supplementary pensions. Especially among vulnerable self-employed people. In addition, there is much uncertainty about the applicable rules. Therefore, the government wants to address the problem with measures along three lines:
- A more level playing field - Targets all forms of contract with respect to social security and taxation. To achieve this, the self-employed deduction will be accelerated, from €6,310 in 2022 to €900 in 2027. In addition, the minister proposes to phase out the fiscal old-age reserve (FOR). The fiscal reserve does not provide the certainty of actually enjoying one's retirement income. Phasing out also prevents the use of the FOR for tax deferral and forces the self-employed to place real old-age provisions outside their company. If it is up to the cabinet, there will also be mandatory disability insurance (AOV) for the self-employed. More information on this will follow in the first quarter of 2023.
- Clarifying the assessment of employment relationships - The clarification of the assessment should make it easier to agree on the correct legal form of an employment relationship right from the start. The Cabinet therefore wants to give substance to the open norm of "working in the service of" (Art. 7:610 BW). The emphasis is on the classic elements of subordination, such as giving instructions and supervising. The Cabinet adds that 'working in the service of' is also at issue if the work is organizationally embedded in the employer's company. In addition, whether there is self-employment becomes important. The element of self-employment may be an important contraindication to the existence of an employment contract. These three main elements and their interrelationships will be further elaborated in the coming period.Furthermore, a rebuttable legal presumption of an employment contract must be established to support the bargaining position of employed persons. The civil law presumption of employment will be based on an hourly rate to be determined. It will be up to the worker to prove that there is no employment contract. If the worker and employer cannot agree, the worker can go to court. Also, the web module labor relations assessment will be further developed to comply with the new laws and regulations.
- Improve enforcement on false self-employment - On January 1, 2025 at the latest, the enforcement moratorium must be lifted. The Cabinet considers enforcement necessary for a future-proof labor market and a sustainable tax and social security system. The central premise of the Tax and Customs Administration's strategy will be that citizens and businesses "comply with rules of their own accord as much as possible, without compelling and costly actions on the part of the Tax and Customs Administration." In this regard, the Tax Administration considers good cooperation between the market and the Service to be of great importance. An important part of the new approach is the streamlining of internal and external communication regarding enforcement. In addition, the possibility of organizing preliminary consultations at branch level is being explored, so that the situation becomes workable for the branches and the Service.
Details will be worked out in the coming months. In doing so, there will be room for the social partners and the market to contribute ideas. The plan is to schedule a debate on this parliamentary letter in the first quarter of 2023. Then a draft bill will be presented to the market through an Internet consultation. After the summer, the minister plans to send it to the Council of State so that the final proposal can be presented to the House in early 2024. The aim is to publish the legislation by January 1, 2025. This fits well with the lifting of the enforcement moratorium on the same date.