The Deregulation of Assessment of Employment Relationships Act (DBA) has abolished the VAR (Declaration of Employment Relationship). The contractor and the client must make agreements regarding their employment relationship themselves. In this way, they jointly assess whether or not an employment relationship exists. Employment has three characteristics: remuneration (salary), personal work (the employee does not have the option to appoint someone else to perform the work), and employer authority. However, it is sometimes difficult to determine whether or not an employer authority exists. A model agreement from the Tax and Customs Administration can sometimes offer more certainty.
Do I need a model agreement?
When one of the previously mentioned characteristics of employment is missing (remuneration, personal work, and employer authority), there is usually no employment. When it is abundantly clear that the contractor is not working in an employment relationship, it is not necessary to use a model agreement. You may do so, of course, but it is not mandatory. When it is clear that the employee is working in an employment relationship, a model agreement cannot, of course, be used either. In that case, you need an employment contract . It is important that an employment contract is drafted meticulously.
A model agreement from the Tax and Customs Administration is therefore particularly useful in cases of doubt. However, we wish to warn that it is the practical situation that truly counts, not the model agreement. If both parties respect the provisions of the model agreement, there is no employment relationship. But if the client and/or the contractor do not adhere to the model agreement, the situation is different. In that case, the certainty is lost, and employment may still be deemed to exist. Since 2020, the Tax and Customs Administration has also had more enforcement powers. Adhering to the agreements is therefore extremely important.
Modifying a model agreement
Although model agreements can be very useful in some cases, it is not always easy to get started with them. There is a wide selection of model agreements, and it is important that you choose the right one. Moreover, the Tax and Customs Administration's model agreements also allow for modifications. Texts highlighted in yellow may not be modified, and added or modified texts may not contradict these highlighted texts. To avoid problems, it is advisable to leave the modification of a model agreement to a legal expert.
Have the modified model agreement checked
Are you modifying the model agreement yourself? Then you can have it reviewed by MKB Juristen. We verify whether the model agreement has been modified correctly and whether the "no employment" ruling remains valid. Additionally, with our ContractCheck™ on other legal considerations. We check whether the agreement is appropriate and whether there are any risks associated with the arrangements made.
We are also at your service for questions regarding this agreement. For instance, it is sometimes possible to deviate from the provisions highlighted in yellow. While this does not necessarily mean that the contractor is then an employee, caution is nevertheless advised. legal consultation We will explain this to you
