Belgian decision makers have struggled for years against the large number of so-called ‘independents’ who, in reality, although freelance in name, work for just one client. The question has always been whether contracts between them and their client should be requalified as employment contracts.
In December 2006 the government introduced measures which were meant to make it more difficult to set up such contracts. The Government was supposed to set up a Committee to look into cases that were brought to its attention and provide guidance to courts but this never happened.
In the absence of specific guidance, Courts have fallen back on general criteria relating to:
- the willingness of the parties as expressed in the contract;
- freedom of organization of working time by the worker
- freedom of work organization ;
- the degree of hierarchical control
The all important criteria was the degree of subordination in the contract between the two parties, the idea being that a freelancer couldn’t sign a contract which included any kind of line management.
However in practice, Courts have been relying on the content of the contract only and now the Social Security Inspectorate (whose job it is to detect abuse) revealed that it has abandoned monitoring false freelancers after it revealed that of the 200 cases it took to works tribunals in 2010, 180 were thrown out immediately.
On the one hand, there is a clear opportunity for many more of these types of contract to be concluded and on the other, the Social Inspectorate appears to have raised the stakes vis-à-vis the government (what government I hear you cry?) to force it to take action.
http://www.entreprendretoday.be/article.php?news_id=5420 (HDP & AristA)