Employment law, title 10 of book 7 from Civil Lawbook, apply when between parties there is question of an employment contract. Often, to protect economic “weaker” employees, most of the by us employment law included provisions, ¾ of this is forced law. These are provisions that are (almost) impossible to be deviated from in agreements. The question about whether or not you can speak of a employment agreement is important to set the rights and obligations in de agreement for all of the involved parties.
What does the law tell us?
In article 7:610 part 1 Civil Lawbook a employment agreement is defined.
“The employment agreement is a agreement where one party, the employee, binds to be employed of the other party, the employer, for wage during a certain period of labor.”
From this definition appears three elements you can separate from each other, namely:
- The obligation to provide (personal) work;
- The obligation to pay wages; and
- To be employed of the other party (authority)
Are these elements present, then you can speak of an employment arrangement and the provision of employment law is applied to the agreement. This seems reasonably simple, but it’s not always that easy to see if there is an employment agreement. The question about how an agreement should be qualified, is frequently presented to a judge. Also in a recent arrest of the Supreme Court.
Jurisprudence
One of the most important arrests of the Supreme Court (Groen / Schoevers, HR November 14th 1977, NJ 1998/149) where is explained when you can talk about an employment agreement is from the year 1997. In this arrest, the Supreme Court considered, for as long as it’s relevant, the following:
“For the question whether or not a legal relationship should be qualified as a employment agreement, or as a contract for services, there is decided what parties had in mind when signing the agreement, partly taken into account is the way they gave a factual performance to the agreement and therefore then gave their own meaning to it. ”
After this arrest, there was attached considerable importance to the intentions of both parties. Do parties intentionally have started an employment agreement? Currently in practice, mostly the stronger employer is the one who decides this, in this arrest this was seen as erosion of the agreement.
Even after 1997, the Supreme Court multiple times has commented on about the question when a agreement can be qualified as an employment agreement. The arrest from 1997 stayed as the base. In a recent arrest the Supreme Court actually considered that the meaning that was awarded, wasn’t right.
ECLI:NL:HR:2020:1746
In its arrest from November 6th 2020, the Supreme Court has made a clear difference between the two phases, namely:
Phase 1: the content of an agreement; and
Phase 2: the qualification of an agreement
The Supreme Court clarifies that in the first phase the rights and obligations should be determined by explanation. The question about which rights and obligations are determined by the parties must be answered on the basis of the Haviltex criterion. This Haviltex-criterion is – shorty viewed – looked at the purpose which parties could assign and at what is reasonable to expect from each other.
In the second phase must be looked at if the determined content of an agreement meets the meaning of the artikel 7:610 BW. Does the agreement meets this requirement, then the agreement is being designated as a employment agreement. Different than expected based on arrest of the Supreme Court from 1997, in this it isn’t relevant if parties also really meant to include the agreement under the statutory regulation of an employer agreement.
Regarding the arrest from 1997, the Supreme Court considered the following:
“Different from what is derived from the arrest Groen / Schoevers, the meaning of parties doesn’t play a part in the question if an agreement is designated as an employment agreement.”
Conclusion
The question about whether or not an agreement is designated as an employment agreement is relevant to see if the agreed rights and obligations meets the legal description of the employment agreement. In other words, after the agreed rights and obligations are determined (explanation), the agreement can be rated to see if it is has characteristics of an employment agreement (qualification). If parties meant to conclude an employment agreement is, other than expected, not important for the question if an agreement should be designated as an employment agreement.
