Self-Employed Persons Act Bill: what does this mean for you?

As you’ve come to expect from us, we’ll keep you up to date with all the latest developments on the topic of ‘self-employed, yes or no?’. This month, the Self-Employed Persons Bill has entered the online consultation phase. What does this bill entail? You can read about it here:

What is the bill about?

The issue of (bogus) self-employment has been a concern for both workers and clients for many years now. Currently, employment relationships are assessed on the basis of Article 7:610 of the Dutch Civil Code (work, wages and authority) and the criteria set out by the Supreme Court in the Deliveroo and Uber judgements.

The new bill is intended to finally bring some clarity to the debate surrounding working as and with self-employed workers. Whether it will actually succeed remains to be seen, as the bill is already stirring up quite a bit of debate. The main thrust of the bill is that two tests will be introduced to determine whether a worker is a ‘genuine’ self-employed person (or, in fact, an ‘ordinary’ employee): the self-employment test and the employment relationship test.

Self-employment test

The self-employment test focuses primarily on the self-employed person themselves: their self-employment in the broadest sense. Three criteria are specified:

1. In the period up to and including the previous calendar year the self-employed person must have had a total of at least 3 clients

2. The worker spends a minimum amount on provisions against risks associated with working as a self-employed person. These include provisions such as insurance for (long-term) incapacity for work, insurance against loss of income due to illness in the first two years, pension provision, business/professional liability insurance, business interruption insurance and legal expenses insurance. The government is using the online consultation to gather input and engage with stakeholders in order to determine a suitable minimum amount. This is therefore not yet known, but the starting point is that a single, uniform amount will be applied, rather than a graduated amount dependent on turnover or profit.

3. The worker meets the basic requirements to work as a self-employed person, such as active registration in the Commercial Register, a valid VAT registration number, a business bank account, invoicing clients, offering credit terms (such as a 30-day payment term) and making payments to third parties on behalf of the business.
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Employment Relationship Test

Unlike the self-employment test, the employment relationship test contains only criteria relating to the specific relationship between the worker and the client. Four criteria have been formulated in this context:

1. The intent of the parties (not to work on the basis of an employment contract)
2. The freedom to organise the work: the client does not give instructions on how the work is to be carried out.
3. The freedom to organise working hours and the workplace
4. Working for one’s own account and at one’s own risk
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To pass the employment relationship test, all four criteria must be met.

Relationship between the two tests

The question now is how the two tests relate to one another. The diagram below, taken from the explanatory memorandum, has been drawn up for this purpose:

In our view, this makes the situation rather complex, and the question is whether this will indeed bring the long-standing debate to an end, or not. After all, working relationships that do not pass the tests set out in the Self-Employed Persons Act are not automatically employment relationships! In such cases, workers and clients simply do not have the certainty of the ‘safe harbour’ provided by the Self-Employed Persons Act, but self-employment may still be involved! The working relationship must then be assessed in accordance with the existing rules.

Comments on the draft bill can be submitted online until 29 October. You can read the draft bill, the draft explanatory memorandum and the comments already submitted (of which there are now hundreds) here: Overheid.nl | Consultatie Zelfstandigenwet

Conclusion

Once the online consultation has closed, the Ministry may decide to amend the bill. This will be followed by the Council of State’s advice and the government’s response to it. In 2027, the bill will be debated in the House of Representatives and the Senate. As soon as there is any news regarding the Self-Employed Persons Act, we will of course keep you informed. In the meantime, the existing rules remain in force. If you have any questions regarding employment law, please feel free to contact our team of employment law specialists.

mr.dr. Martine E.V. van Krieken – Boersma