Many com­pan­ies are increas­ingly aware that there is a sig­ni­fic­ant risk that false independent contractors may be ret­ro­spect­ively clas­si­fied under a (gen­er­ally bind­ing) CLA, with all the fin­an­cial con­sequences that this entails.

 

What com­pan­ies often do not real­ize is that more and more CLAs include pro­vi­sions con­cern­ing inde­pend­ent con­tract­ors, par­tic­u­larly regard­ing minimum rates and the Work­ing Hours Act (see also this NOS report). There has been much debate about the estab­lish­ment of min­im­um rates for freel­an­cers. Pre­vi­ously, the Dutch Com­pet­i­tion Author­ity ruled that agree­ing on min­im­um rates with freel­an­cers would viol­ate com­pet­i­tion law. In the FNV/Kiem case, the Court of Appeal of The Hag­ue referred ques­tions to the Court of Justice of the European Uni­on about the applic­a­tion of com­pet­i­tion law to col­lect­ive bar­gain­ing pro­vi­sions for inde­pend­ent con­tract­ors. In response, the European Court held that CLA pro­vi­sions that reg­u­late rates for self-employed work­ers can fall out­side the scope of com­pet­i­tion law if these self-employed work­ers are in a situ­ation com­par­able to that of employ­ees dur­ing the assignment.This means that if inde­pend­ent con­tract­ors are effect­ively in a sub­or­din­ate rela­tion­ship to their cli­ent, they can be con­sidered as “false self-employed” and thus enjoy the same pro­tec­tions as employ­ees. The Court emphas­ized that this depends on the spe­cif­ic cir­cum­stances of the work­ing rela­tion­ship, such as the degree of sub­or­din­a­tion and the nature of the employ­ment con­di­tions.

Inde­pend­ent con­tract­ors are not them­selves bound by a CLA and are not involved in the nego­ti­ations there­of. A CLA is agreed upon between employ­ers (organ­iz­a­tions) and trade uni­ons. Even though the inde­pend­ent con­tract­or is not bound by the CLA, employ­ers (organ­iz­a­tions) bound by the CLA are oblig­ated to adhere to the agree­ments made with the trade uni­ons, caus­ing the inde­pend­ent con­tract­or pro­vi­sions to apply across an entire industry. Trade uni­ons can also enforce these agree­ments if bound employ­ers do not com­ply.

The Dutch gov­ern­ment has had plans for some time to imple­ment labor mar­ket reforms spe­cific­ally aimed at self-employed per­sons without employ­ees (zzp’ers). These plans were also announced in the letter from former Min­is­ter Van Gen­nip of Social Affairs and Employ­ment dated 3 April 2023. How­ever, the cur­rent status of these plans is unknown. Part of the plans includes con­duct­ing research into the pos­sib­il­it­ies for zzp’ers to con­clude col­lect­ive labor agree­ments (cao). It has also been polit­ic­ally sug­ges­ted more fre­quently to allow self-employed per­sons to par­ti­cip­ate in col­lect­ive nego­ti­ations con­cern­ing the cao agree­ments that affect them. Giv­en these devel­op­ments, it is not sur­pris­ing that more and more cao agree­ments con­tain pro­vi­sions regard­ing self-employed per­sons.

 

CLAs with pro­vi­sions for inde­pend­ent con­tract­ors

Below is an over­view of sev­er­al sec­tor CLAs that include pro­vi­sions for inde­pend­ent con­tract­ors. Each CLA is briefly sum­mar­ized regard­ing its main pro­vi­sions for inde­pend­ent con­tract­ors and wheth­er it has been declared gen­er­ally bind­ing.

1. Archi­tec­tur­al Firms (val­id from 01/01/2024 – 31/12/2024): There is only a inde­pend­ent con­tract­or rela­tion­ship if the inde­pend­ent con­tract­or charges an hourly rate of at least 150% of the gross hourly wage, increased by 8% hol­i­day allow­ance, applic­able to employ­ees per­form­ing sim­il­ar work under sim­il­ar con­di­tions.
2. Arts Edu­ca­tion (val­id from 01/01/2024 – 31/12/2024): The Fair Prac­tice cal­cu­lat­or can con­vert a CLA salary into an inde­pend­ent con­tract­ors rate. The Arts Edu­ca­tion CLA was declared gen­er­ally bind­ing on 9 March 2024.
3. Energy and Util­it­ies WENB Sec­tor CLA GEO Pro­cess and Ser­vices (val­id from 01/04/2022 – 31/03/2024): inde­pend­ent con­tract­ors are deployed at a socially respons­ible rate. This rate allows the inde­pend­ent con­tract­or, above the reg­u­lar remu­ner­a­tion in the sec­tor, to insure against risks such as dis­ab­il­ity, pen­sion, and liab­il­ity. The rate itself is not spe­cified.
4. NAPK Music Ensembles (val­id from 01/03/2022 – 31/12/2024): the inde­pend­ent con­tract­or receives an hourly rate that is at least 1.50 times the salary of an employ­ee in the same pos­i­tion.
5. Broad­cast Per­son­nel (val­id from 01/01/2024 – 31/12/2024): the Fair Prac­tice Code applies. In the case of a con­tinu­ation or sim­il­ar new assign­ment, a cli­ent must apply at least the annu­al increase gran­ted by the gov­ern­ment to pub­lic broad­casters in the offer for an agreed rate.
6. Theatre and Dance (val­id from 01/01/2024 – 31/12/2024): the inde­pend­ent con­tract­or receives an hourly rate that is at least 1.50 times the salary cor­res­pond­ing to the pos­i­tion. The Theatre and Dance CLA was declared gen­er­ally bind­ing on 29 Feb­ru­ary 2024.
7. Secur­ity Domain (val­id from 01/03/2024 – 01/03/2025): the cli­ent must com­ply with the Work­ing Hours Act and the asso­ci­ated rules for the inde­pend­ent con­tract­or.
8. Dutch Stages (val­id from 01/01/2024 – 31/03/2025): the inde­pend­ent con­tract­or receives an hourly rate that is at least 1.50 times the salary cor­res­pond­ing to the pos­i­tion.
9. Dutch Pop Ven­ues and Fest­ivals (val­id from 01/01/2022 – 31/12/2025): depend­ing on the nature of the work and the exper­i­ence of the inde­pend­ent con­tract­or, the (hourly) rate at least cor­res­ponds to a gross (hourly) wage determ­ined by a suit­able pos­i­tion and com­par­able exper­i­ence mul­ti­plied by 1.5. Parties have now reached a CLA agree­ment for a new CLA with a dur­a­tion from 01/01/2024 – 31/03/2025, but the texts for the new CLA were not ready at the time of writ­ing this blog.
10. Care trans­port and cab (val­id form 01/01/2023 – 30/06/24, but tacitly exten­ded): if an employ­ee had been work­ing in the industry as an inde­pend­ent con­tract­or for three years or more, this peri­od is con­sidered to have been work­ing in the industry and any years of exper­i­ence for that peri­od are included. The CLA Care Trans­port and Taxi was declared gen­er­ally bind­ing on 4 June 2024.

 

Con­clu­sion

Although inde­pend­ent con­tract­ors are not parties to CLAs them­selves, a com­pany sub­ject to a CLA with inde­pend­ent con­tract­or pro­vi­sions does run a (fin­an­cial) risk if the inde­pend­ent con­tract­or pro­vi­sions are not com­plied with. Con­sider the risk that the Labour Inspect­or­ate finds that the CLA is not fully com­plied with, that trade uni­ons enforce com­pli­ance with the CLA, or that a lump sum pen­alty is imposed. The amount of such a pen­alty depends on what parties have agreed upon but can be sub­stan­tial. It is there­fore cru­cial to assess wheth­er a (gen­er­ally bind­ing) CLA applies to a com­pany, ensur­ing that the rel­at­ively new inde­p­dent con­tract­or pro­vi­sions are not over­looked.

 

Are you unsure wheth­er your com­pany is bound by a CLA and wheth­er addi­tion­al inde­pend­ent con­tract­or pro­vi­sions apply to your busi­ness? We are happy to assist you!

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