It is not uncom­mon for an inde­pend­ent con­tract­or to even­tu­ally re-enter into an employ­ment rela­tion­ship. Should the employ­er con­sider the exper­i­ence gained as an inde­pend­ent con­tract­or, even if it was obtained at a dif­fer­ent com­pany and there were sev­er­al months without any assign­ments or activ­it­ies? Yes, accord­ing to the ‘s-Her­to­gen­bosch Court of Appeal on 9 Janu­ary 2024.

 

Back­ground

An inde­pend­ent con­tract­or had worked as a pack­age deliver­er for, among oth­ers, Post NL for about 8 years (from 2007 to mid-2015) under a con­tract for ser­vices. In mid-2015, the inde­pend­ent con­tract­or par­ti­cip­ated in a strike at Post NL, claim­ing under­pay­ment. He ceased his activ­it­ies as a self-employed indi­vidu­al on 11 Decem­ber 2015, due to insuf­fi­cient earn­ings and inab­il­ity to meet cer­tain licens­ing require­ments and man­dat­ory courses. Sub­sequently, he received unem­ploy­ment bene­fits. In the same month, he also dere­gistered his cour­i­er ser­vices busi­ness from the Cham­ber of Com­merce. Approx­im­ately six months later, on 1 June 2016, he was employed as a courier/driver based on an employ­ment con­tract at Pakket Ser­vice Zee­land (PSZ).

The employ­ment con­tract was sub­ject to the Col­lect­ive Labour Agree­ment for Pro­fes­sion­al Goods Trans­port by Road and the Rent­al of Mobile Cranes (the CLA) for peri­ods when the agree­ment was declared gen­er­ally bind­ing. The fol­low­ing art­icle is included in the CLA (trans­lated by HVG Law):

“Upon entry into ser­vice, the employ­ee shall be graded in the salary scale cor­res­pond­ing to their pos­i­tion at the step that cor­res­ponds to the num­ber of unin­ter­rup­ted years of exper­i­ence in the same or sim­il­ar pos­i­tion, both in this and oth­er sec­tors, imme­di­ately pre­ced­ing the entry into ser­vice. In determ­in­ing the num­ber of years of exper­i­ence, inter­rup­tions of less than two years are dis­reg­arded.”

No account was taken of the pre­vi­ous (8) years of exper­i­ence gained as an inde­pend­ent con­tract­or in grad­ing upon entry into the employ­ment agree­ment. The employ­ee, there­fore, claimed back salary pay from PSZ, includ­ing hol­i­day allow­ance, based on being graded in the incor­rect lower salary scale. He also sought cor­rec­tion of his leave bal­ance and com­pens­a­tion for his pen­sion con­tri­bu­tions. PSZ refused these requests, arguing that the 8 years of exper­i­ence should not be con­sidered as they were not acquired imme­di­ately pri­or to the start of the employ­ment agree­ment. PSZ con­ten­ded that an absence of at least six months resets the exper­i­ence counter to zero.

 

Judg­ment of the sub­dis­trict court

The Dis­trict Court ruled that the pro­vi­sion of the CLA should not be inter­preted strictly gram­mat­ic­ally. The art­icle above clearly indic­ates that years of exper­i­ence should be rewar­ded. Set­ting the con­di­tion that there must be dir­ect employ­ment under­mines the intent of the parties to the CLA. Accord­ing to the Dis­trict Court, the years of exper­i­ence gained as an inde­pend­ent con­tract­or should indeed count towards the grad­ing upon entry into ser­vice. The employ­ee should have been graded at a high­er step.

 

Decision of the Court of Appeal

The Court of Appeal agreed with the sub­dis­trict court. The Court of Appeal explained that, accord­ing to estab­lished jur­is­pru­dence, the inter­pret­a­tion of a col­lect­ive labour agree­ment must fol­low object­ive stand­ards, where the word­ing of the pro­vi­sion, read in the con­text of the entire text of the agree­ment, is determ­in­at­ive. Applied to this case, the sub­dis­trict court rightly con­cluded that a lit­er­al inter­pret­a­tion of ‘imme­di­ately pre­ced­ing entry into ser­vice’ would lead to unreas­on­able leg­al con­sequences. For instance, it would mean that the employ­ee would lose all his years of exper­i­ence if there was even a single day between the end of one con­tract (or con­tract for ser­vices) and the start of the next. There­fore, the years of exper­i­ence as a self-employed indi­vidu­al must be con­sidered upon his entry into ser­vice as an employ­ee at PSZ.

 

Con­clu­sion

Inter­pret­ing col­lect­ive labour agree­ments pro­vi­sions is chal­len­ging and often leads to intense dis­cus­sions. Employ­ers are usu­ally attent­ive when hir­ing new employ­ees, but the pos­sible employ­ment his­tory of an inde­pend­ent con­tract­or (espe­cially if they have not been act­ive for some time) is often over­looked. This rul­ing under­scores the import­ance of vigil­ance in this regard.

It is also reaf­firmed that a pro­vi­sion of a col­lect­ive labour agree­ment should not be taken too lit­er­ally. If an employ­er fails to adequately apply a col­lect­ive labour agree­ment pro­vi­sion, the employ­ee – ret­ro­act­ively – can make vari­ous claims, such as: salary pay, hol­i­day allow­ance and pen­sion con­tri­bu­tions, includ­ing stat­utory interest and leg­al increases. All in all, this can prove to be much more costly than the cor­rect and high­er ini­tial grad­ing.

 

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