Intro­duc­tion
It is not per­mit­ted to charge a fee to work­ers for mak­ing them avail­able. There­fore, tem­por­ary employ­ment agen­cies or second­ment agen­cies can­not pass on the bill for their ser­vices to the tem­por­ary work­ers or seconded employ­ees (Sec­tion 9 of the Dutch Alloc­a­tion of Work­ers by Inter­me­di­ar­ies Act (Waadi). This prin­ciple is also known as the “no fee to work­er” prin­ciple. This law imple­ments Sec­tion 6 para­graph 3 of the European Dir­ect­ive 2008/104/EC (the Tem­por­ary Agency Work Dir­ect­ive).

The European Court of Justice ruled in 2016 in the Ruhr­landk­linik judg­ment that the Tem­por­ary Agency Work Dir­ect­ive applies to all work­ers engaged in an “employ­ment rela­tion­ship”. Hence, the dir­ect­ive has a broad­er scope than just work­ers employed under a, employ­ment con­tract. Based on this broad­er inter­pret­a­tion, this could also apply to inde­pend­ent con­tract­ors. The Dutch Court of Appeal of Arnhem-Leeuwarden under­scored this broad­er inter­pret­a­tion in a recently pub­lished judg­ment (ECLI:NL:GHARL:2023:2621).

What was the issue?
A lender and an inde­pend­ent con­tract­or (work­ing in health­care) entered into a con­tract for ser­vices, under which the inde­pend­ent con­tract­or per­formed his duties for the hirer. The con­tract for ser­vices included a broker­age fee of 3.5%, which was deduc­ted from the pay­ment made by the lender to the inde­pend­ent con­tract­or. The inde­pend­ent con­tract­or argued that this agree­ment was in viol­a­tion of the Waadi and thus null and void. The lender argued that there was no employ­ment rela­tion­ship, so the Waadi did not apply, and there­fore the agree­ment was val­id.

In this case, the court, and later the Court of Appeal, ruled that the inde­pend­ent con­tract­or was entitled to a full refund of the broker­age fee. The Court of Appeal fur­ther con­siders the fol­low­ing.

Court of Appeal’s judge­ment
The Court refers to a 2022 rul­ing (ECLI:NL:HR:2022:751) by the Supreme Court. Accord­ing to the Supreme Court, an inde­pend­ent con­tract­or work­ing based on a con­tract for ser­vices with a tem­por­ary employ­ment agency could invoke Sec­tion 9a Waadi (the pro­hib­i­tion of obstruc­tion), because he was made avail­able to the hirer for a fee, but only to the extent that the per­son, in rela­tion to the tem­por­ary employ­ment agency, does not sub­stan­tially dif­fer from an employ­ee of the tem­por­ary employ­ment agency.

Sec­tion 9a Waadi imple­ments Sec­tion 6 para­graph 2 of the Tem­por­ary Agency Work Dir­ect­ive, allow­ing the Supreme Court to align with the defin­i­tions from this dir­ect­ive. How­ever, the present case does not con­cern Sec­tion 9a Waadi (the pro­hib­i­tion of obstruc­tion) but Sec­tion 9 Waadi (the no fee to work­er prin­ciple). Sec­tion 9 Waadi also imple­ments the Tem­por­ary Agency Work Dir­ect­ive, lead­ing the court to choose to align with the defin­i­tions of the Tem­por­ary Agency Work Dir­ect­ive in this situ­ation as well.

The Court ruled that the rela­tion­ship between the lender and the inde­pend­ent con­tract­or could be qual­i­fied as mak­ing a work­er avail­able accord­ing to Sec­tion 9 Waadi. Although the inde­pend­ent con­tract­or was not work­ing under an employ­ment con­tract for the lender, there was, accord­ing to the Court, an employ­ment rela­tion­ship between them. This was sup­por­ted by the fact that the inde­pend­ent con­tract­or per­formed tasks for and under the author­ity of the lender, and that the lender did not merely func­tion as a ‘match­ing tool’.

The Court emphas­ized that the inde­pend­ent con­tract­or also worked under the super­vi­sion and dir­ec­tion of the hirer, includ­ing fol­low­ing instruc­tions from super­visors and per­man­ent staff. A clause in the gen­er­al terms and con­di­tions of the lender, stat­ing that the inde­pend­ent con­tract­or expli­citly did not work under the super­vi­sion and dir­ec­tion of the hirer, was irrel­ev­ant. The actu­al situ­ation is what counts.

The Court also con­cluded that the inde­pend­ent con­tract­or, based on the work per­formed in the Neth­er­lands, receives pro­tec­tion as inten­ded by the Supreme Court in the afore­men­tioned rul­ing. This did not require the employ­ment rela­tion­ship of the inde­pend­ent con­tract­or to be identic­al to that of an employ­ee of the lender. How­ever, it was required that the inde­pend­ent con­tract­or enjoyed sev­er­al rights that were partly identic­al or equi­val­ent to those of per­sons qual­i­fied as employ­ees under Dutch law.

Con­clu­sion
In short, the Court decided that the lender was not entitled to ask for a con­sid­er­a­tion from the inde­pend­ent con­tract­or for mak­ing the ser­vices avail­able to the hirer, in accord­ance with Sec­tion 9 Waadi. The inde­pend­ent con­tract­or had there­fore rightly invoked the nullity of this con­trac­tu­al pro­vi­sion. This con­firmed that the inde­pend­ent con­tract­or was entitled to a full refund of the broker­age fee.

Do you have ques­tions about this or are you unsure wheth­er there might be a con­flict with the Waadi? Please feel free to con­tact us!

This blog is also pos­ted on the Flexmarkt and Flexupdate web­site.

 

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