Employee Status vs. Self-Employed Status: Introduction of a Refutable Presumption of the Existence of an Employment Agreement
Filip Saelens and Kim Van Hemelryck, Loyens & Loeff
The difference between an employee status and a self-employed status is the existence or the non-existence of a link of subordination between the parties.
Title XIII of the Program act of 27 December 2006 on the nature of an employment relation contains criteria to determine whether such link of subordination exists. Recently this Program act has been modified by the act of 25 August 2012 (the Act). The aim of this modification is to deal with false (self-)employment and is one of the many anti-fraud measures the Belgian government has taken in 2012.
The existing principles remain unchanged: the qualification given by the parties is the starting point. However, a reclassification will take place if the actual execution of the agreement is incompatible with the chosen qualification. If there are sufficient elements to reclassify an agreement is judged on the basis of 4 general criteria, i.e. the will of the parties, the freedom to organise the working time, the freedom to organise the work and the possibility to exercise hierarchical supervision.
The Act now introduces a refutable presumption of the (non-)existence of an employment agreement, on the basis of nine socio-economic criteria.
This presumption is only applicable in four sectors in which the problem of false self-employment was the most existing, i.e. the construction sector, the guarding sector, the sector of the transport of goods and/or persons (except ambulance services and the transport of persons with a handicap) and the cleaning sector. However, the presumption can be extended to other sectors by Royal Decree.
According to the Act the existence of an employment agreement will be presumed when five or more out of nine criteria are fulfilled. To the contrary, when five or more out of nine criteria are not fulfilled, there will be a presumption of self-employment. This presumption can be reversed by all means of law, a.o. based on the 4 general criteria on the basis of which the (non-)existence of an employment agreement can be determined.
Most of the provisions of this Act will take effect on January 1st, 2013 unless a royal decree determines an earlier date.