Interview Dieter Dejonghe

Companies looking to get started with freelancers still often lack the right legal expertise To ensure that flexible staff correct can be implemented. Therefore, it was high time to invite an expert to outline the main implications, when you want to use freelancers.

GIGHOUSE sat together with Dieter Dejonghe, attorney specializing in individual and collective labor law, social security law and social criminal law from the law firm Claeys & Engels. We asked him all our pressing questions.

As an attorney specializing in individual and collective employment law, these are unlikely exciting times for you. The gig economy brings opportunities for companies but also big issues. Can you tell us a bit more about the legal implications of gig workers?

As far as my field is concerned, the crucial question is that of the social status of the freelancer: is it an employee or a self-employed person? There has been talk for some time of developing a sort of "third status" between that of employee and self-employed, specifically for the gig economy. To date, however, there is no such thing, nor is it certain that there ever will be. So we have to make do with what we have and that requires some legal creativity in applying "old" legal provisions to "new" forms of cooperation.

According to Marleen Deleu often rigid divisions still exist in companies between ecosystems of the self-employed and permanent employees. This is mainly because there are certain concerns about not complying with laws and regulations. Where are the major differences between the two different statutes?

The major difference between an employee and a self-employed person is that the former is under the authority of the employer and the latter is not. Furthermore, when working with a self-employed person, there will be greater contractual freedom, the straitjacket of labor legislation (employment contracts, working hours, remuneration, etc.) will not apply. Of course, there are also differences in terms of social security. Simply put, a self-employed person will pay fewer social contributions than an employee, but the social security coverage (including disability, pension, etc.) will also be less. However, this can largely be overcome through private insurance.

In 2017, Belgium had 500,000 bogus self-employed workers, according to the UCL report. How do you ensure that false self-employment does not get a chance within your company? What criteria do you need to meet to avoid false self-employment?

If the parties choose to work together on an independent basis, this can be reclassified into an employment contract if there are incompatible elements. This is assessed according to four criteria: the will of the parties, freedom of organization of working time, freedom regarding labor organization and the possibility of exercising hierarchical control. In certain sectors (such as construction and transportation, among others), specific rules apply to certain activities. However, it would take us too far to go into this in detail.

Sham self-employment is avoided by working with a good contract that emphasizes self-employment (with attention to the four criteria mentioned) and by not doing things in practice that deviate from the contract. For example, if the contract stipulates that the freelancer is completely free to determine what hours he or she will perform, the client should not start sending emails to the freelancer saying that the freelancer "once again arrived late to work." It is also important to consider exactly what tasks the freelancer will perform. Not every job lends itself to being performed by a freelancer.

What first steps should companies take to correctly implement freelancers into the organization?

Everything starts, of course, with drawing up a good contract that includes specific agreements on the tasks the freelancer will perform, compensation, termination, liability and the like. In addition, the contract should also emphasize the freelancer's independence. A good contract is a good start, but the actual execution of the agreement must be consistent with it.