This judgment has significant implications, as it brings the workers within the scope of the Temporary Agency Work Collective Labour Agreement (ABU-CLA) and the relevant provisions of the Dutch Labour Intermediaries Allocation Act (Waadi).

The unions (FNV and CNV) argued that Temper had circumvented the applicable employment law protection. According to the unions, the workers were falsely classified as self-employed and actually were temporary agency workers supplied by Temper to its clients. The claims were largely dismissed at first instance, but on appeal the Court reached a different conclusion and granted part of the unions’ claims.

Classification of the relationship: Temporary agency employment

The Court classified the legal relationship between Temper and the workers as a temporary agency employment contract. This means that Temper is regarded as the formal employer, making workers available to client companies to perform work under those clients’ supervision and direction.

In reaching this conclusion, the Court applied the Supreme Court’s Deliveroo criteria and assessed all relevant facts and circumstances in their entirety. Consistent with established case law, the Court first examined the rights and obligations agreed between the parties and subsequently assessed whether those arrangements satisfy the statutory definition of an employment contract. The contractual label chosen by the parties is not decisive; rather, the actual performance of the relationship is determinative.

Key factors considered by the Court:

  • Temper’s control and involvement: Temper does not act as a merely neutral platform. Instead, it is closely involved in both the establishment and performance of the work. It provides model service agreements, advises parties not to deviate from these agreements (which rarely occurs in practice), and supplies replacement agreements. The platform is also structured in such a way that workers may only work a maximum number of hours for a particular client. This level of involvement indicates that Temper’s role extends well beyond merely matching supply and demand.
  • Integration into clients’ businesses and client supervision: Temper has not sufficiently disputed that the work carried out through Temper forms part of the clients’ regular business activities and is carried out under the clients’ supervision and direction. Work performed through Temper forms part of the clients’ regular business operations and is carried out under the clients’ supervision and direction. Clients determine working hours and provide instructions, which is consistent with the characteristics of a temporary agency employment relationship. According to the Court, the often short-term nature of assignments does not alter this qualification.
  • Personal performance of work (limited right of substitution): Although the contractual arrangements contain a substitution clause, the Court considered this of limited practical significance. On average, a worker performs 42 assignments for eight different clients over a three-month period. Consequently, the substitution clause does not undermine the requirement that the work is performed personally.
  • Absence of genuine entrepreneurial risk: The Court found that the workers do not bear any substantial commercial risk. They can buy out the risk of non-payment by clients, and they generally do not make significant investments. Furthermore, both the way the work is performed and the level of remuneration are not indicative of genuine entrepreneurship. While the workers may have a VAT registration number and be registered with the Dutch Chamber of Commerce, the Court considered these factors insufficient in themselves to conclude that they are self-employed persons.

Consequences and significance for the platform economy

As Temper has been classified as a temporary work agency employer, it must comply with the applicable employment law obligations, including adherence to the ABU Collective Labour Agreement (to the extent it has been declared generally binding) and compliance with the relevant provisions of the Waadi. Between 2016–2019, Temper breached Section 9 Waadi by charging workers €1 per hour worked for its worker-supply activities. In addition, Temper should have deducted and paid wage taxes on the remuneration paid to the workers.

What does this mean for platforms and their clients?

Although an appeal at the Supreme Court is expected to be filed against this ruling and the outcome is therefore not yet certain, it is clear that platform arrangements are being viewed critically. It is no longer sufficient to argue that a platform is a technological intermediary platform that brings supply and demand together; if the platform (partly) organises the relationship between the worker and the client, there is a risk that the relationship between the worker and the platform will be classified as a temporary agency contract.

The ruling also affects clients. If a platform is subsequently classified as a temporary employment agency, workers may hold clients liable if they have received insufficient pay, and clients may face (tax) liability as hirers and chain liability.

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