An important way to prevent an assignment contract from turning out to be an employment contract after all is to use and correctly implement the model agreements on the website of the Dutch Tax and Customs Administration. However, from 1 January 2024, all models that partially or completely assume the possibility of substitution will expire. What does this mean for principals and contractors?
The Dutch Tax and Customs Administration states that in case of doubt as to whether there is salaried work, a model agreement can be used. Some of these models are intended, among other things, for a situation where a contractor is allowed to be substituted. In that case, a model agreement can be used that assumes “no obligation of personal labour” According to the Tax and Customs Administration, this is a contract of assignment so that the contractor will not be considered an employee.
Because, according to the Deliveroo-ruling of the Supreme Court, even the possibility of substitution can constitute an employment contract, the Tax and Customs Administration has decided that these models can no longer be used as of 1 January 2024.
However, since the Tax and Customs Administration already sets as a condition that the model agreement must be executed as agreed upon, it is questionable whether the Deliveroo-ruling will make assignment agreements prove to be employment contracts much more often in practice. Aside from the fact that the Tax and Customs Administration will exercise restraint in enforcing the Deregulation of Assessment of Employment Relations Act (DBA Act) until 1 January 2025.
However, it is clear that the existing model agreements in which substitution is possible can no longer be used as of 1 January 2024. This concerns four general models:
There are also a number of models that are industry-specific and based in whole or in part on the contractor’s ability to be substituted. These models also expire.
Principals will therefore have to replace their contracts based on these models by 1 January 2024 with contracts based on models that are still permitted. In practice, this will usually involve a model based on the absence of employer’s authority. Of course, the condition for using these models is that there is indeed no employer’s authority. If there is an employer’s authority, there will probably be an employment contract.
Do you want to know whether your assignment agreement is still valid after 1 January 2024? If it turns out not to be valid, what are your options? We will be happy to give advice. We will also be happy to assist with other questions about employment law or disputes with contractors and employees. Please contact us:
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