Flexible employment relationships

What we do

In the Netherlands, flexible forms of employment are used relatively frequently: examples include on-call agreements such as zero-hour contracts and minimum-maximum contracts, temporary employment agencies, payroll services, and freelance agreements. Such flexible employment relationships are currently a focus of attention. Specific legislation and regulations apply to all these forms of flexible employment. Our practice group answers all questions in this area and assists the organization with, among other things:

• Drafting and reviewing flexible (model) agreements
• Advice on the opportunities and risks of flexible work
• Advice and support with the transition from flexible to permanent
• Equal pay for temporary agency and payroll employees
• Advice on flexible work after retirement
• Litigation in case of conflicts

Do you have questions regarding flexible employment relationships? Please contact us.

Forms of flexible work listed

Flexible employment takes many forms, each with its own legal regime. With an on-call agreement – ​​including zero-hour contracts and minimum-maximum contracts – the scope of work is not clearly defined. The temporary employment contract (Article 7:690 of the Dutch Civil Code) involves a triangular relationship between the temporary worker, the employment agency, and the client. Payrolling looks similar on the surface, but since the Balanced Labour Market Act, it falls under its own regime (Article 7:692 of the Dutch Civil Code): the payroll employee is entitled to at least the same terms and conditions of employment as an employee directly employed by the client. In addition, organizations work with secondment, fixed-term contracts , and self-employed professionals based on a contract for services. Which form is appropriate depends on the actual implementation – not on the label on the contract. Our lawyers and in-house counsel assist organizations ranging from international corporations to the local baker with the right choice and proper documentation.

The on-call agreement and the offer for fixed hours

Since the Balanced Labour Market Act (Wab, effective January 1, 2020), on-call workers are better protected. An employee is only required to respond to a call if they have been summoned in writing or electronically at least four days in advance (Article 7:628a, paragraph 2, of the Dutch Civil Code). If the call is withdrawn or modified within that period, the on-call worker retains the right to wages for the originally summoned hours (Article 7:628a, paragraph 3, of the Dutch Civil Code). Furthermore, after twelve months, the employer must make an offer to the on-call worker for a fixed number of hours, based on the average of the preceding year (Article 7:628a, paragraph 5, of the Dutch Civil Code). Failure to make this offer, or making it too late, can easily lead to a wage claim. We assess on-call arrangements, draft model agreements, and litigate when a dispute arises regarding the scope of work.

Legal presumption regarding the scope of the work

Anyone who consistently works more hours than agreed upon in writing can invoke the legal presumption of Article 7:610b of the Dutch Civil Code: the scope of employment is presumed to be equal to the average of the past three months. For on-call workers, this is a powerful instrument to enforce a fixed number of hours; for employers, it is an important consideration when setting up flexible schedules. We advise both parties on the evidentiary position and the consequences for wages, and conduct the proceedings where necessary.

Chain regulation: from temporary to permanent

Temporary contracts are popular, but the law sets limits. Under the chain rule (Article 7:668a of the Dutch Civil Code), an employment contract for an indefinite period arises as soon as more than three consecutive fixed-term contracts have been concluded, or as soon as the chain has lasted longer than three years. In principle, an interruption of more than six months breaks the chain. Under certain conditions, this can be deviated from by collective labor agreement. An incorrect assessment means that permanent employment arises unnoticed – with all the associated consequences for dismissal and the transition payment. We map out the chain and advise on comprehensive contract planning. Read more about employment contracts and dismissal law.

unemployment insurance contributions, equal pay and transition allowance

Flexible employment also impacts costs. Since the Wab, a low unemployment insurance premium applies to permanent, written contracts, while a high premium applies to flexible contracts; for on-call workers who work more than 30% above their contract hours, the low premium may be retroactively waived. Agency and payroll employees are entitled to equal pay compared to permanent colleagues. Furthermore, a transition payment is in principle due upon the termination of a temporary or flexible contract (Article 7:673 of the Dutch Civil Code), effective from the first working day. We calculate the tax and employment law implications to prevent unpleasant surprises.

Bogus self-employment and the hiring of freelancers

The use of self-employed professionals is flexible, but it has a downside: bogus self-employment. If the actual relationship proves to meet the characteristics of an employment contract – work, wages, and authority (Article 7:610 of the Dutch Civil Code) – the self-employed professional may be retroactively classified as an employee, resulting in back taxes and claims. With the phasing out of the enforcement moratorium regarding the DBA Act, this risk has become urgent for clients. We review hiring arrangements, draft watertight service agreements, and assess whether a relationship passes the authority test.

What is changing: more security for flex workers

Flex law remains in flux. With the legislative proposal for greater security for flexible workers, the classic zero-hours contract is expected to disappear and be replaced by a bandwidth contract , with a guaranteed minimum and a maximum of at most 130% of that minimum. In addition, the interruption period under the chain rule is being extended. Although the exact effective date still depends on parliamentary proceedings, employers would do well to make their flex policy future-proof now. We are closely monitoring developments and translating them into concrete advice.

Part of our employment law

Flexible employment relationships are a specialty within our broader Employment Law. In our mixed teams, lawyers and (in-house) legal counsel work together to ensure you receive both sharp legal advice and practical support – whether you are a listed corporation or an entrepreneur with a handful of on-call workers. From drafting a flex contract to proceedings regarding the scope of employment: we stand by your side. If you also wish to properly arrange any non-compete clauses in flex contracts, we will assist you.