Newsletter 2023 – 01
1 Office news
Mr. Dirk Heylen returns.
Dirk Heylen returned to his former love at the end of last year. It's hardly necessary to introduce him. He's an expert in employment law and social security law. He's more convinced than ever that he can fully develop and utilize his experience and knowledge at Mploy.
Mr. Rob Valkeneers joins Mploy.
Rob Valkeneers is joining Mploy. He will be based in the Hasselt office.
He has been active as a lawyer at the bar since 2002 with a strong focus on employment and social security law.
He also has a special interest in topics at the intersection of public and private law. For example, he was previously affiliated with the University of Antwerp, where he worked under the supervision of Prof. R. Janvier on an FWO research project on the applicability of the principles of good governance and their impact on employment relations in the public sector.
With Mr. Valkeneers, Mploy is off to a flying start in 2023!
2 Publications
by Mr. Ludo Vermeulen appeared, a discussion of a judgment of the Court of Appeal in Antwerp of September 30, 2021. The judgment and the discussion concern the age limit of 65 imposed by KBC Insurance on its insurance agents.
Mr. Steven Renettspoke on January 17, 2023, for the Association for Social Law to an audience of 70 participants regarding questioning by the Social Inspectorate. This concerned a presentation of the contribution he previously wrote on this topic in the Arbeidsrecht Journaal (KU Leuven), which here . His clear opinion on parcel services can also be heard on the podcast Het Kwartier from January 25, 2023.
3 Rush Hour HR – March 14, 2023 – 4Wings (Westerlo)
Save the date! We'll announce the program soon.
4 Mploy is recruiting.
Are you passionate about labor and social security law? Would you like to provide guidance to company managers and employees on issues related to (employment) contracts, regulations, dismissal arrangements, wages, social audits, or occupational accidents (to name just a few)?
Mploy is looking to strengthen its offices in Westerlo and Hasselt. Do you have several years of experience as a social law attorney or HR lawyer in the corporate sector and are you ready for a new career?
Do you want to give it 100%, but do you also find a healthy work-life balance, a pleasant working atmosphere and open communication important?
Our door is wide open for you. Send a message (ludo.vermeulen@mploy.be or steven.renette@mploy.be) or contact us by phone (014 54 68 43 – 011 36 09 71). Discretion assured.
5 Jurisprudence – on independent animation girls
Antwerp Court of Appeal, January 12, 2023, unpublished.
Given the actual circumstances of the collaboration, the animators working in a 'drink-along' establishment are self-employed and not employees.
The owners of a massage parlor were prosecuted by the public prosecutor's office for allegedly working several women illegally, i.e., for failing to comply with Dimona and related obligations. Assessing this claim naturally required assessing the employment relationship between the owners and the women.
The Court of Appeal applies the principles and the four general criteria of the Employment Relations Act1 to the ladies who performed services on an independent basis in a so-called “drinking establishment”.
To begin with, the court sets out a number of principles. The following are not, either individually or in combination, incompatible with an independent agreement:
- the fact that the clientele remains the property of the client;
- the absence of ownership of the commercial fund;
- the absence of management autonomy;
- the absence of economic and financial risk;
- the (free) provision by the client of premises, tools and materials;
- the determination of prices by the client;
- the absence of investments.
- no possibility of being replaced;
- no participation in profits;
- client's material;
- all costs paid by the owner of the business;
- no financial input and responsibility;
- receipt of a fixed fee.
Regarding the working conditions of the massage ladies, the Court establishes the following. They were only permitted to work during the establishment's opening hours, but they were not required to work the entire day. They could take time off if they felt unwell or take a day off. The advertising was done by the establishment, not by the individual ladies. If they were expected not to smoke or drink during work, monitoring this does not necessarily imply the exercise of authority. The ladies themselves determined the “acts” they performed with the client as well as the price for their services. They were also allowed to refuse clients. From these elements, the Court infers that they freedom of organization of their work .
Also interesting is the analysis of the fourth general criterion (“hierarchical control”): the Court distinguishes between hierarchical control, quality control, and social control. By hierarchical control, the Court understands “control over the application of labor, in other words, control over what must be done, how and when it must be done. Quality control, namely control over the progress of the work, the appearance of the work, and whether the work has been done well, is not hierarchical control. Social control is also not hierarchical control.”
When the control and supervision are characterized by the power of one party to impose real disciplinary sanctions on the other, one assumes that an employment relationship exists.”
Steven Renette, lawyer-partner
steven.renette@mploy.be
Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be