Reducing the risk of fictitious employment
Mr Th.R. Ludwig – Franchise attorney
Recently, the new Minister of Social Affairs, De Geus, made the choice that he wants to put an end once and for all to the discussion whether there is self-employment or a disguised employer/employee relationship among the self-employed (without personnel). This problem also occurs in the business services sector.
Testing by the Employee Insurance Agency (UWVs), former industrial associations and/or administrative agencies, yields varying results in the case of franchise relationships, among other things. If the self-employed person in question is regarded as a fictitious employee, whether or not with retroactive effect, this entails that social premiums and wage tax are (still) owed by the franchisor and/or franchisee to the relevant UWV and/or the tax authorities. . Whether there is an obligation to take out insurance depends on a number of criteria. The most important are capital, risk and so-called other characteristics. Specifically, the following matters are important:
Does the franchisee have independent working capital?
Has the franchisee actually made investments?
Does the franchisee have independent debtors and creditors and is his income uncertain and variable?
Does the franchisee trade under its own name or under another name?
Does the franchisee advertise independently?
Does the franchisee keep independent accounts and, if relevant, is he charged for sales tax?
Although these criteria will remain important in practice, the Minister has now ruled that there is only an insurance obligation if the self-employed person has committed fraud with the aim of circumventing the insurance obligation. The minister therefore opts for a very considerable expansion of the concept of independence in order to prevent unwanted or unintentional (too fast) arrival at compulsory insurance and the establishment of a fictitious employment relationship. It therefore seems likely that the risk of this will be significantly reduced in the very short term.
Ludwig & Van Dam franchise attorneys, franchise legal advice
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No Dutch Franchise Code, but legislation on franchising.