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So-called "fake self-employment" - Special criteria adopted for the road transport and logistics sectors

Newsflash
Social inspections and criminal law

The Royal Decree of 29 October 2013 complements the existing legal requirements, creating a presumption of fake self-employment for the sectors of road transport and logistics.

The Act of 25 August 2012 amending the labour relations Act, had established a presumption (which can be reversed) of so-called "fake self-employment" in four sectors: construction, security, cleaning and transport (see our Newsletter of 19 September 2012). This presumption is based upon nine socio-economic criteria listed in the law, which can be elaborated or modified by Royal Decree.

The legal criteria concerning the security and construction sectors have already been modified (see our Newsflashes of 23 May 2013 and 1 July 2013).

The Royal Decree of 29 October 2013 amends and replaces the legal criteria applicable to the transport and logistics sectors, in particular by providing the following criteria:

  • the absence of financial and economic risk for the person who is undertaking the work;
  • the absence of decision-making power in the hands of the person undertaking the work, with respect to the financial means of his/her own company;
  • the absence of decision-making power in the purchasing policy of the company performing the work;
  • the absence of decision-making power with respect to the benefits to take into account for the pricing of the work (unless the price was agreed based on objective criteria, for example in the context of grants for transport and calls for tenders) ;
  • the absence of a performance obligation on the agreed work;
  • the inability for the person undertaking the work to hire his/her own staff
  • the fact of not appearing as an own company vis-à-vis others (except agreements on advertising on drawn equipment);
  • by working in a place of using a vehicle which the person who is undertaking the work is not the owner of (or tenant).

> Action point

Verify if based upon the (elaborated) criteria a rebuttable presumption of fake self-employment exists.