With the introduction of the 'Deregulation of Assessment of Employment Relations Act' (Wet DBA), the 'Declaration of Employment Relationship' (VAR) expired as of 1 May 2016. No longer could a VAR indemnify a client against possible employment in relation to a contractor. This law did not bring the clarity and peace of mind it was supposed to bring. The cabinet has therefore decided to replace the law. The aim is for the new measures to take effect on 1 January 2021. Until then, the DBA Act will be in force.
Why do principals and contractors (zzp'ers) also like to have certainty about the employment relationship they enter into with each other? This is because the qualification contractor or employee entails a big difference in tax and labour law consequences. If it turns out to be a (disguised) employment relationship, the employer is obliged to withhold payroll taxes and there is an insurance obligation for employee insurance. The employer also has to deal with labour law rules regarding (among other things) continued payment of wages during illness and holidays and there are suddenly rules regarding dismissal.
Although the DBA Act was intended to make qualification easier and more transparent for all parties, practice showed otherwise. In addition, there is a growing group of sham self-employed persons (self-employed persons who have an employment relationship with their client and where it is actually an employment relationship, thus creating the unwanted competition on working conditions) and vulnerable self-employed persons that the government is still concerned about. The DBA Act offers insufficient protection to this group. So time for a short-term change that provides clarity on the qualification of the employment relationship while doing justice to the vulnerable workers on the labour market.
The government wants to introduce new laws and regulations from 2021 to replace the DBA Act. Although it first looked at whether parties could work with a minimum rate and a declaration of self-employment, these options turned out not to be possible due to the excessive regulatory burden caused by the great diversity of self-employed workers. Both alternatives are therefore put on hold. As a result, there is still no solution for the group of vulnerable self-employed workers. However, other important steps have been taken whereby more clarity is provided to clients. In autumn 2020, a pilot phase will start under which a declaration of principalship can be issued by completing a questionnaire in a web module.
With the web module, the government is developing a tool to give clients clarity - and where possible certainty - on the qualification of the employment relationship for payroll taxes. If the answers to the questions in the web module show that the client can work outside an employment relationship, he will receive a so-called client statement. This provides assurance that an assignment can be performed outside a (fictitious) employment relationship (and therefore that no payroll tax or employee insurance contributions need to be paid). Naturally, the exemption only applies to the extent that the questions in the web module are answered truthfully and the practice corresponds to this.
By the way, the web module is not mandatory. Completion is done anonymously and is not registered anywhere. It is only intended as an aid for the party who doubts the qualification of the employment relationship. However, in case of an inspection by the Tax Authorities, a client can rely on an issued client's declaration, provided it is filled in truthfully and worked on accordingly.
In addition, the web module also issues the 'indication of employment', when it follows from the answers that the relationship could possibly be seen as employment. This indication has no legal consequences either, but there is a chance that, in practice, an employment relationship actually exists. In that case, you would be wise to reconsider the design of the employment relationship. However, there also remain situations where the web module cannot give an opinion. This may be the case, for example, because specific circumstances play a role in the branch or sector in question, which the web module cannot sufficiently take into account.
With effect from 12 January 2021, the pilot phase Webmodule Beoordeling Arbeidsrelaties started. You can find the web module on the website of the Chamber of Commerce.
Would you like to know in advance which indicators are important for the client declaration? Or which questions you can expect when using the web module? Please feel free to contact one of Marxman Advocaten's Labour Law specialists. They will be happy to help you.