202109.28
0

Helpling: a new chapter in the platform work saga

The standard excuse “we are (just) a “tech company” does not seem to really appeal to the Amsterdam Court of Appeal yet. Earlier rulings concerning Deliveroo (ECLI:NL:GHAMS:2021:392) and Uber (ECLI:NL:RBAMS:2021:5029) in which these “tech” companies are simply regarded as (modern) employers and must apply the collective labour agreement (CAO), are still fresh in the memory. Those rulings were already bad news for all “techies” who establish themselves on the Amsterdam Zuidas. With the judgment concerning Helpling the Amsterdam Court of Appeal continues this line – in a nuanced manner.

Helpling is a platform that brings together supply and demand for cleaning work and earns from this as an “intermediary”. To be admitted to the platform, both the household and the cleaner must accept the Terms and Conditions drawn up by Helpling. The cleaner and household can then create a profile. Helpling ranks these by postal code area after which the household makes its own choice. The household and the cleaner agree on a rate together. This may not be below the statutory minimum wage. After finishing the cleaning, Helpling immediately checks with the cleaner whether there were any special issues and whether they worked longer. Cleaner and household rate each other (maximum 5 stars). Afterwards the cleaner receives a draft invoice which he/she must forward to the household. Payment is processed via the payment system “Stripes”, and therefore does not go directly to the cleaner. The household may not employ the cleaner without penalty. Until 2019 the cleaner had to pay a commission of up to 32% of the remuneration to Helpling, but Helpling stopped this after the judgment of the Rechtbank Amsterdam that this is prohibited under the WAADI ( ECLI:NL:RBAMS:2019:4546).

Temporary employment agreement between Helpling and the cleaner
The Court is of the opinion that the relationship between Helpling and the cleaner is not a “regular” employment contract, but rather a temporary (employment) agency agreement. There is pay (payment of the rate) and work, and a formal authority relationship (Helpling is involved in the selection, the terms, advises on the hourly rate, and arranges the (financial) settlement), but the household has the actual management and supervision of the cleaning activities. That is characteristic of an agency agreement (7:690 BW).

Article 7:690 of the Civil Cod:The temporary employment contract is the employment contract whereby the employee is made available by the employer, in the context of the employer’s business activities, to a third party to perform work pursuant to an assignment given by that third party to the employer, under the supervision and direction of the third party.

The Court does not concur with Helpling’s defense that an employment contract arises between the household and the cleaner. Helpling does encourage in the general terms and conditions that a mutual standard contract must be concluded. In practice, however, that does not happen. Helpling’s website also gives a very different picture of the household’s obligations, this is in fact all very non-binding. According to Helpling’s website the household can always “switch” cleaners; cancel the scheduled cleaning; and also does not have to keep paying during vacation or illness. That is not compatible with the basic obligations of an employment contract.

Helpling also argued that there cannot be an employment agency agreement because for that the “hirer” must be a company. A household is generally not. However, this is not a statutory requirement, according to the Court. To this we add that the words “in the context of the exercise of the profession or business of the employer” logically refer to the employment agency employer, i.e. Helpling in this case.

WAADI
The WAADI plays an important role and Helpling seriously underestimated this. According to the “Law on the Allocation of Workers by Intermediaries”, every lender who commercially mediates, lends, and seconds personnel must comply with the following obligations:

  • The lender must state to the trade register (KvK) that he makes workers available, the “registration obligation for the WAADI”. Both the lender and the hirer may be fined if the intermediary (temporary employment agency) is not correctly registered.
  • The lender may not charge the temporary worker a financial fee for the mediation / placement.
  • prohibition on obstruction (art. 9a WAADI): the intermediary does not raise any obstacles to directly entering into employment with the hirer after the end of the placement.

Helpling initially still charged the cleaning workers a commission. FNV found that this had to be repaid. After the judgment by the Rechtbank Amsterdam in first instance, Helpling no longer charged a commission to the cleaners, but to the households. The cleaners lowered their rate. The Hof finds it contrary to reasonableness and fairness if Helpling would have to repay to the cleaners the commission it had already received up to July 2019. As far as the Hof is concerned, Helpling ventured into uncharted territory and it is difficult to assess how the existing employment-law rules should be applied to this matter.

With regard to the prohibition on obstruction, the Court is rather strict: the fine of 500 if the household directly hires the cleaner is considered unreasonable because this fine can be claimed for each time this happens (art. 9a paragraph 1 WAADI).

Finally, the Court considers the Cleaning CAO not applicable. Helpling does not fall under the definition: “every enterprise that makes its main or secondary occupation the regular or one-off cleaning at a location specified by the client (…) of (…) dwellings (…).” This is because Helpling does not exercise direction and supervision over the actual cleaning work.

Analysis
It is good news that the paper reality of a platform “tech” company has again been exposed. We see in this the far-reaching influence of the Supreme Court judgment of 6 November 2020 concerning X/Gemeente Amsterdam ( ECLI:NL:HR:2020:174 ) .
The Helpling judgment contains an important warning for (platform) organizations that profit from offering/mediating/seconding workers. They must quickly familiarize themselves with the WAADI and comply with it! Otherwise they risk fines…..
It is disappointing that the Cleaning Collective Labour Agreement is not considered applicable. After all, Helpling has set up its platform entirely around cleaning help. We don’t find it a strong argument that Helpling does not exercise management and supervision; in our view, the majority of cleaning companies do not.
We are curious what will follow from the judgment that there is no “real” employment contract but “only” a “temporary agency contract”. According to the statutory text, a temporary agency contract is an employment contract in which the actual authority is outsourced to the hirer. However, in the literature it is argued that there can also be a temporary agency contract with an independent contractor. This would then fall under the social insurance obligation for the WW, ZW and WIA. Would the Court want to introduce the intermediary category of “worker” here? The “worker” does not yet have a statutory basis in the Netherlands, but this type of worker (between employee and contractor) should be able to claim the (European) mandatory minimum rights (minimum wage, minimum vacation days, social insurances). Maybe this is a prompt for the Supreme Court to rule on this and create new law? Now that politics is still dragging its feet with the reform of the labour law…..

Femke Luijkx