To combat underpayment, social dumping and unfair competition, necessary regulations are in place within the EU and in the Netherlands to protect workers as much as possible. The contractual freedom of employers has been restricted for years. For example, by including specific agreements on working hours, remuneration, holidays, etc. in mandatory collective bargaining agreements for the sector.
Some collective bargaining parties go much further. In the collective agreement Construction & Infra there is an article (96 paragraph 10) from which it follows that employers falling within the scope of the collective agreement Construction & Infra are are obliged to must use a model agreement for the deployment of ZZP'ers from the moment this model is published. business owners in this sector are therefore bound by obligations from the collective agreement not only when making agreements with employees, but also when deploying ZZP'ers. This is new and unknown.
Mandatory model contract for deployment of ZZP'ers in Construction & Infra
Although the DBA Act that deals with the deployment of ZZP'ers is still under discussion in The Hague (and is currently not being actively enforced), since April 2017 there is nevertheless a model contract approved by the Tax Authorities for the deployment of ZZP'ers in Construction & Infra.
A transition period encouraging the use of the model is in place until April 2019. After that date, employers who do not use the model may face an obligation to pay damages for not following the prescribed model in the collective bargaining agreement. This goes very far.
The basic principle in the Netherlands is that parties themselves may know whether they enter into an agreement and if so with what content. Not so in Construction and Infra! As a result of this measure, the freedom of contract is severely restricted by the obligation to follow the model contract prescribed in the collective agreement.
Safeguarded from problems when using the mandatory approved model?
Using the approved model does not guarantee that no sanctions can be imposed by the Tax Office. After all, if the model is not fully acted in line with, the Inland Revenue can still come to the conclusion that there is false self-employment.
Moreover, several issues are not properly laid down in the model contract that you as business owner in Construction & Infra do have to deal with. For example, the model contract lacks obligations with regard to providing the required work permits when deploying foreign ZZP'ers and nothing is regulated about complying with the Wet Aanpak Schijnconstructies (Law on the approach to bogus constructions) by correctly remunerating your employees, keeping proper payroll records, etc. It is wise to make proper arrangements about this to avoid surprises. One of those surprises could be that you end up on a so-called "naming and shaming list" that is public and from which it follows that you, as an employer, are cooperating with underpayment because the ZZP'er you have engaged does not comply with the rules. For example, if this ZZP'er uses temporary workers or employees to do a job and he does not pay these workers correctly for it.
What to do?
If your company does not fall under the scope of the Collective Labor Agreement Construction & Infra, you still have freedom of contract. You can then make your own agreements with ZZP'ers whereby you lay down the agreements yourself or use one of the models provided by the Belastingdienst that suits the way you would like to work with the ZZP'ers.
If you do fall within the scope of the collective bargaining agreement Construction & Infra, you still have until April 2019 to make a consideration as to whether you are going to follow the (incomplete) model that will become mandatory in order to avoid paying damages later if you do not. Should you make that choice, do not forget to add articles (for example, on ARBO, WAV, liability and delivery) to ensure that the model is truly complete.
The current CBA is valid until March 31, 2018. Providing input to achieve a better compulsory model contract ZZP or ensuring that the obligation to use the model contract disappears completely from the CBA also helps. You must then take action and report your wishes to Bouwend Nederland and other unions involved in the collective bargaining agreement, otherwise nothing will happen. Take back your freedom of contract!
Any suggestions? n.nijkamp@pvdb.nl
