Work­ing con­di­tions act and work­ing con­di­tions decree

It is often thought that inde­pend­ent con­tract­ors are solely respons­ible for their own safe work­ing con­di­tions and that the Work­ing Con­di­tions Act (in Dutch: Arbowet) and the Work­ing Con­di­tions Decree (in Dutch: Arbobe­sluit) do not apply to them. While this was indeed the assump­tion in the dis­tant past, since 1980, the Work­ing Con­di­tions Act has stated that oth­er work­ers besides employ­ees can also fall under the pro­tec­tion of (a part of) the Act. Since 2010, fol­low­ing advice from the Dutch Social and Eco­nom­ic Coun­cil (SER) from 2010 and 2011, this has been revis­ited. In its advice, the SER emphas­ized that all work­ers, wheth­er employ­ees or inde­pend­ent con­tract­ors, should in prin­ciple have the same level of pro­tec­tion in cer­tain work­ing con­di­tions, such as max­im­um per­miss­ible noise or phys­ic­al strain. The SER con­sidered the gen­er­al pro­tec­tion of work­ers more import­ant than con­trac­tu­al free­dom.

The gov­ern­ment did not fully fol­low the SER’s advice at the time, as it wanted to inter­fere with the parties’ con­trac­tu­al free­dom as little as pos­sible. How­ever, since 1 July 2012, the same rules have applied to inde­pend­ent con­tract­ors and employ­ees if they work togeth­er in the same work­place (Sec­tion 9.5 of the Work­ing Con­di­tions Decree). This pre­vents undesir­able com­pet­i­tion regard­ing work­ing con­di­tions, espe­cially con­sid­er­ing the issue of bogus self-employ­ment. The Labor Inspect­or­ate mon­it­ors work­ing con­di­tions at the work­place, usu­ally unan­nounced. If the inspec­tion reveals that the cli­ent does not com­ply with the Work­ing Con­di­tions Act and Decree, the viol­a­tion is recor­ded in writ­ing. The nature and sever­ity of the viol­a­tion determ­ine wheth­er a fine is imposed imme­di­ately or if a warn­ing is giv­en first. It is import­ant not to take this lightly as fines can be sub­stan­tial! The Labor Inspect­or­ate can also par­tially or com­pletely halt work until the viol­a­tion is rec­ti­fied, espe­cially if there is imme­di­ate danger to per­sons.

For inde­pend­ent con­tract­ors who work without being in a work­place with employ­ees, the new work­ing con­di­tions rules do not apply. A light­er regime applies to them. The pro­vi­sions regard­ing ser­i­ous risks and rules related to danger to oth­ers at the work­place remain applic­able. For example, they do not have to draw up a risk invent­ory and eval­u­ation (in Dutch: RI&E), pre­vent­ing an extra admin­is­trat­ive bur­den.

 

Tool­box meet­ings also man­dat­ory for inde­pend­ent con­tract­ors

Many com­pan­ies that per­form high-risk work in a high-risk envir­on­ment (such as con­struc­tion or main­ten­ance work on con­struc­tion sites and in factor­ies) have VCA cer­ti­fic­a­tion. These are often com­pan­ies act­ive in (petro)chemistry, mech­an­ic­al engin­eer­ing, elec­tric­al engin­eer­ing, (scaf­fold­ing) con­struc­tion, trans­port, main­ten­ance, met­al, etc. For VCA-cer­ti­fied com­pan­ies, it is man­dat­ory (depend­ing on the cer­ti­fic­a­tion) to hold a so-called tool­box meet­ing (safety meet­ing) at least quarterly, where safety instruc­tions are gen­er­ally cent­ral. Often changes in laws and reg­u­la­tions are dis­cussed, high-risk tasks in daily oper­a­tions are reviewed, as well as incid­ents and/or com­plaints. Organ­iz­a­tions are free to determ­ine how to organ­ize the tool­box meet­ing. What many com­pan­ies often do not real­ize is that the law requires tem­por­ary work­ers, such as inde­pend­ent con­tract­ors, to be demon­strably present at these meet­ings. It is advis­able to doc­u­ment this at every meet­ing with an attend­ance list to ensure the safety cer­ti­fic­ates are not jeop­ard­ized.

How­ever, com­pan­ies without VCA cer­ti­fic­a­tion are also required under the Work­ing Con­di­tions Act to suf­fi­ciently inform their employ­ees about work­place safety, although not neces­sar­ily quarterly. This can also apply to inde­pend­ent con­tract­ors, as a cli­ent can be con­sidered an employ­er under the Work­ing Con­di­tions Act. Con­sider an inde­pend­ent con­tract­or work­ing among the client’s own employ­ees on the work floor. This inde­pend­ent con­tract­or must receive the (up-to-date) RI&E from the cli­ent before start­ing work (Sec­tion 5 para­graph 5 of the Work­ing Con­di­tions Act). In prac­tice, this rarely hap­pens on time.

 

Employ­er liab­il­ity for inde­pend­ent con­tract­ors

In the event of a work acci­dent, not only employ­ees but also inde­pend­ent con­tract­ors can invoke employ­er liab­il­ity as stip­u­lated in art­icle 7:658 BW. This was already judged by the Supreme Court in 2012. The Supreme Court briefly men­tions two cri­ter­ia that must be met for an inde­pend­ent con­tract­or to suc­cess­fully invoke Sec­tion 7:658 para­graph 4 of the Dutch Civil Code towards the cli­ent:

1. The inde­pend­ent con­tract­or must be (par­tially) depend­ent on the per­son for whom he per­forms the work for his safety.
2. The work per­formed by the inde­pend­ent con­tract­or must actu­ally be part of the client’s busi­ness oper­a­tions.

For the first cri­terion, one might think of con­struc­tion experts work­ing on a large site or care work­ers work­ing on a self-employed basis in a care facil­ity. In that case, it is up to the cli­ent to ensure a safe work­place. The inde­pend­ent con­tract­or in these situ­ations can­not change the work­place them­selves to com­ply with the work­ing con­di­tions reg­u­la­tions.

For the second cri­terion, con­sider a care work­er in a care facil­ity who falls under employ­er liab­il­ity because the care facility’s main activ­ity is provid­ing care, but an inde­pend­ent salary admin­is­trat­or or clean­er does not fall under employ­er liab­il­ity.

This has been invoked in case law sev­er­al times, for example, in the Mid­den-Neder­land Dis­trict Court on 31 Janu­ary 2018 (ECLI:NL:RBMNE:2018:538). An inde­pend­ent con­tract­or suc­cess­fully held both the main con­tract­or and sub­con­tract­or jointly liable for employ­er liab­il­ity under Sec­tion 7:658 para­graph 4 of the Dutch Civil Vode after a work acci­dent. The inde­pend­ent con­tract­or had only con­trac­ted with the sub­con­tract­or, but as the work was car­ried out in the main contractor’s busi­ness oper­a­tions, the absence of a con­trac­tu­al rela­tion­ship between the two did not pre­clude liab­il­ity. The court referred to a Supreme Court judg­ment of 15 Decem­ber 2017, which briefly states that the free­dom of a per­son con­duct­ing busi­ness to choose wheth­er to have work per­formed by employ­ees or oth­er work­ers should not affect the leg­al pos­i­tion of the per­son per­form­ing the work and involved in a work acci­dent or oth­er­wise suf­fers dam­age.

 

Con­clu­sion

Vari­ous rules of the Work­ing Con­di­tions Act apply to inde­pend­ent con­tract­ors, with sig­ni­fic­ant fines or work stop­pages if these rules are not suf­fi­ciently observed. Addi­tion­ally, cli­ents can be held liable for a work acci­dent involving an inde­pend­ent con­tract­or. There­fore, it is cru­cial that busi­nesses ensure a good work­ing con­di­tions policy, also regard­ing inde­pend­ent con­tract­ors. If you have doubts about wheth­er you are doing enough to ensure the safety of inde­pend­ent con­tract­ors, do not hes­it­ate to con­tact us!

 

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