False self-employment: new refutable suspicion for the existence of a labour agreement for 4 sectors
In her battle against false self-employment and false employees, the government has modified the labour relation law. For 4 sectors this will has consequences ultimately as from 1 January 2013. Then there will be a refutable suspicion of a labour agreement or the status as employee when 5 of the 9 specific criteria are fulfilled. People active in these sectors and who appeal to self-employed persons should avoid that the collaboration is qualified as false self-employment.
General and specific criteria
You have the liberty to choose the nature of your professional relationship. By 4 general criteria this professional relationship is judged and possibly re-qualified: the intention of the parties, the liberty to organize working hours, the liberty to organize the job and the possibility to supervise the work. Additionally there are also specific criteria for a certain sector and one or more (categories of) professions.
Refutable suspicion for 4 sectors
In order to fight abuses relating to false self-employment, the government has modified the labour relation law of 27 December 2006 (by the law of 25 August 2012, Belgian Official Gazette 11 September 2012). Since problems occur in certain sectors, she has chosen a sector specific approach. In 4 fraud sensitive sectors a refutable suspicion of a labour agreement is introduced:
for immovable works (immovable sector);
for security and supervisory services for the account of third parties (security sector);
for transport of goods and persons for the account of third parties, except for ambulance services and the transport of disabled persons (transport sector);
for activities falling within the scope of the parity committee for cleaning (cleaning sector).
Legal list of 9 criteria
For these 4 sectors a legal list of 9 criteria is drafted. If an audit of the labour relation shows that more than half of the criteria are fulfilled, a refutable suspicion that it concern a labour agreement applies. When less than half of the criteria are fulfilled, it is considered as self-employment. The suspicion can be refuted by all legal means, including the 4 general criteria. The suspicion is not applicable to family labour relations. The 4 criteria are the following:
1.no financial or economical risk in the hands of the persons performing the work, such as e.g. no personal and substantial investment in the company with own means or no personal and substantial share in the profits or losses of the company;
2.no responsibility and decisive power over the financial means of the company in the hands of the person performing the work;
3.no decisive power over the purchase policy of the company in the hands of the person performing the work;
4.no decisive power over the price policy of the company in the hands of the person performing the work, unless when the prices are legally defined;
5.no result obligation regarding the concerned labour;
6.the guaranty to obtain payment of a fixed fee, irrespective the company results or the scope of the work in the hands of the persons performing the work;
7.the fact not being the employer of free and personally engaged personnel or the lack of the possibility to engage personnel to perform the work or being replaced to do so;
8.not acting as a company towards other persons or usually or mainly working for one contracting party;
9.working in spaces of which one is not the owner or lessee or working with tools which are supplied, financed or guaranteed by the contracting party.
Administrative commission on the labour relations for social rulings
When you regularly appeal to self-employed persons and your company falls within one of the fraud-sensitive sectors, you should check this collaboration with the specific criteria. When the relationship is qualified as false self-employment, this can lead to financial consequences (e.g. obligation to pay late vacation premiums, late social security contributions, holiday premiums). In case of doubt concerning a certain collaboration, you can apply for a binding advice or a social ruling with the administrative division of the Commission on the labour relations. Such a ruling is binding for the RSZ (social security authorities), RSVZ (social security institution for self-employed people) and the social security funds.
The Commission still has to be composed. The composition of such ruling commission was already foreseen in the labour relation law of 2006, but it still has to start its activities. Patience is a virtue. Therefore now the normative division of the Commission is abolished. Introducing specific criteria to check a labour relation will as from now be done through a simplified procedure.