What does that mean? Employment lawyer Anneke Meulenveld of Boontje Advocaten wrote the column below on the subject.

‘State Secretary Wiebes informed the House of Representatives on Friday, Nov. 18, 2016, that the implementation period of the Deregulation Assessment of Labor Relations Act (DBA) will be extended until at least Jan. 1, 2018.What does this now mean for the coming rime, can the model agreements be thrown in the trash can and will the Declaration of Employment Relationship (VAR) return? No and no. The DAB Act will be delayed, but not repealed.

In his Second Progress Report Wiebes explains that there is currently unrest and uncertainty. Clients are reluctant to hire freelancers and freelancers are afraid of losing their contracts. Wiebes wants to remove this uncertainty as much as possible. Above all, real entrepreneurs must be able to do business. Therefore he suspends enforcement until the bottlenecks are resolved.

What will happen next?

• Until Jan. 1, 2018, contractors and principals cannot be fined or retrospectively charged. The Tax Authority will have a different role and will start coaching in advance instead of fining afterwards. Importantly, “malicious parties” can still be fined. A malicious party, according to Wiebes, is “the client or contractor who deliberately creates or continues to create a situation of evident false self-employment, because he knows – or could have known – that there is in fact an employment relationship (and thus obtains an improper financial advantage and/or affects the playing field in an unfair way).’Annoyingly enough, in practice this is of course still open to discussion.

• In the meantime, the Cabinet will examine how the concepts of “authority” and “free replacement” can be adapted to the current social picture of the employment relationship. Many find it incomprehensible that (at the bottom of the labor market) it is relatively easy to work outside employment as long as the “free replacement” criterion is met, while (mostly at the top of the labor market) one is considered to be employed as soon as there is a “relationship of authority.” The latter case involves the self-employed professional who is hired for a specific project in which the result intended by the client counts, but in which the manner in which this is achieved is entirely up to the professional. When is there a relationship of authority? As there is currently no solution to this uncertainty, there will be no enforcement on this group until January 1, 2018, Wiebes said. This gives these professionals the certainty that they will not run into fines or additional taxes until then. Once new terms are established, enforcement will be adjusted, if necessary.

• Wiebes promises more clarity on when the use of a (model) agreement is really necessary, but especially: when it is not necessary. After all, in very many situations there is no doubt that a (fictitious) employment relationship is lacking. Nevertheless, he will not refuse clients and contractors who request certainty in advance. It therefore appears that it will still be possible to submit agreements to the Tax Authorities for approval in the near future.

• Wiebes also makes a comment about the chain-of-contracts rule (maximum three temporary employment contracts in two years) in sectors that work a lot with temporary assignments. At present, collective bargaining parties can already request the Minister of Social Affairs and Employment to designate certain positions in an industry for which more temporary contracts can be concluded by collective bargaining (a maximum of six contracts in four years). This is possible if it is “established practice” for those positions and because of the “intrinsic nature of the business” it is necessary to work on the basis of temporary contracts. He stated that the minister is open to requests from social partners to take appropriate measures where necessary, such as in broadcasting, the media and in the arts and culture sector.

Conclusion

A little uncertainty about the DBA Act is removed with the postponement until January 1, 2018. However, action against false self-employment and “malefactors” will continue unabated. It is therefore still necessary to continue working with good assignment agreements and in practice to also work in accordance with those agreements. In April 2017, Wiebes will consider whether a further extension of the implementation deadline to a date after January 1, 2018 is desirable.

Still not completely at ease? Then contact Anneke Meulenveld of Boontje Advocaten, 020-5040301.

WerfSelect has had its contracts with clients and interim managers amended by Anneke Meulenveld. The basis of the new contracts is the model agreement of the tax authorities, supplemented with other relevant points. Although the law will not be enforced for some time, we are applying these new contracts to respond to the law in the best possible way. This gives, within the current discussions about the law, the most certainty for our clients, interim managers and ourselves. It is not only important to have the contracts in order, but also to organize the actual situation in accordance with the law.

We are happy to assist you in hiring safely. Of course, we are also happy to think with you if you have any questions regarding this topic.

Annelies Ruis, Nov. 21, 2016