Newsletter 2023 – 01
1 Office news
Mr. Dirk Heylen returns.
Dirk Heylen has returned to his old love since the end of last year. Introducing him is actually unnecessary. Labor law and social security law have no secrets for him. More than ever, he is convinced that he can fully develop and deploy his experience and knowledge at Mploy.
Mr. Rob Valkeneers joins Mploy.
Rob Valkeneers strengthens the ranks of Mploy. He will work from the office in Hasselt.
He has been active as a lawyer at the bar since 2002, with a strong focus on labor and social security law.
He also has a special interest in topics that are at the intersection of public and private law. In the past, he was affiliated with the University of Antwerp, where he worked under the supervision of Prof. Dr. R. Janvier on an FWO research project on the applicability of the principles of good governance and their impact on labor relations in the public sector.
With Mr. Valkeneers, Mploy will get off to a flying start in 2023!
2 Publications
Ludo Vermeulen wrote the contribution “About (too) old insurance agents” in issue 15 of the Rechtskundig Weekblad of December 10, 2022, a discussion of a judgment of the Court of Appeal in Antwerp of September 30, 2021. The judgment and the discussion concerns the age limit of 65 that KBC Insurance imposes on its insurance agents.
Mr. Steven Renett e spoke for the Association for Social Law to an audience of 70 participants on January 17, 2023 about the interrogation by the social inspectorate. It was a presentation of the contribution he previously wrote on this theme in the Employment Law Journal (KU Leuven) and which can be consulted here His clear opinion about parcel services can also be heard on the podcast of VRTNWS Het Kwartier of January 25, 2023.
3 Rush Hour HR – March 14, 2023 – 4Wings (Westerlo)
Please keep the date free. We will announce the program soon.
4 Mploy is recruiting.
Are you interested in labor and social security law? Would you like to provide guidance for company managers and employees with their issues regarding (employment) contracts, regulations, dismissal schemes, wages, social audits or industrial accidents (to name just a few topics)?
Mploy is looking for reinforcement for the offices in Westerlo and Hasselt. Do you have several years of experience as a social law lawyer or as an HR lawyer in business and are you ready for a new direction?
Do you want to give it 100%, but do you also find a healthy balance between work and leisure, 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 Case law – about independent animating girls
Court of Appeal Antwerp January 12, 2023, unedited.
Given the actual circumstances of the collaboration, the animators who work in a 'drinking shop' are self-employed and not employees.
The operators of a 'massage parlour' were prosecuted by the Public Prosecution Service for undeclared work by a number of ladies, in other words for failure to comply with the Dimona and related obligations. The assessment of that claim naturally required an assessment of the employment relationship between the operators and the ladies.
The assessment of the Court of Appeal applies the principles and four general criteria of the Labor Relations Act 1 to the ladies who performed services on an independent basis in a so-called "drinking case".
To begin with, the court sets out a number of principles. Are neither individually nor in combination incompatible with an independent agreement:
- the fact that the clientele remains the property of the client;
- the absence of ownership of the trading 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 investment.
- no possibility to be replaced;
- no participation in profits;
- material from the client;
- all costs paid by the owner of the trading fund;
- no financial input and responsibility;
- receipt of a fixed compensation.
As far as the working conditions of the massage ladies are concerned, the court notes the following. They were only allowed to work during the opening hours of the business, but they were not obliged to work all day. They could take time off if they weren't feeling well or take a day of vacation. The advertising was made by the business, not by the individual ladies. If they were expected not to smoke or drink while at work, monitoring this does not necessarily imply the exercise of authority. The ladies themselves determined the “actions” they performed with the customer and also the price for their services. They were also allowed to refuse customers. From these elements the court concludes that they freedom of organization of the work .
The analysis of the fourth general criterion (" hierarchical control ") is also interesting: the Court distinguishes between hierarchical control, quality control and social control. The court defines hierarchical control as “a control over the use of labor, in other words a control over what must be done, how and when it must be done. A quality control, i.e. a check on the progress of the work, on what the work looks like and whether the work has been done properly, is not a hierarchical check. Social control is also not hierarchical control.
When control and supervision are characterized by the power of one party to impose real disciplinary sanctions on the other, an employment relationship is presumed.”
Steven Renette, attorney-partner
steven.renette@mploy.be
Ludo Vermeulen, lawyer-partner
ludo.vermeulen@mploy.be