So-called "fake self-employment" - Special criteria adopted for the construction sector

A Royal Decree of 7 June 2013 now elaborates the existing legal criteria that create a presumption of fake self-employment for the so-called 'works in real estate' (construction sector).

In August 2012 a (rebuttable) presumption of 'fake self-employment' was introduced in the Labour Relations Law for four specific sectors: 'works in real estate' (being the construction sector and certain activities falling under different joint committees), cleaning, security and transport (see our newsletter of 19 September 2012). The presumption is based upon nine socio-economic criteria listed in the law. It is provided that the nine criteria can be elaborated or modified by Royal Decree.

After a first Royal Decree in that sense concerning the security sector (see our Newsflash of 23 May 2013), a second Royal Decree has just been published concerning the so-called 'works in real estate'. This elaborates the existing legal criteria (to a limited extent).

The additions include among other things:

• the absence of personal liability of the person undertaking the work;
• the inability to freely choose customers and negotiate contracts;
• the presence of a guaranteed fixed remuneration without taking into account the fixed advances for materials and commodities;
• (the contractor) not presenting itself as a company towards third parties, for example by not using its own logo, lettering on vehicles, ...;
• (the contractor) not working independently from the work crews of the co-contractor.

Furthermore, the Royal Decree defines the concept of 'company' which appears in a number of the criteria, such as for example in "the absence of decision power concerning the financial means of the company". The Decree clarifies that "company" concerns the company performing the work.

> Action point:

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