Helpling and the cleaner – not an employment contract, but perhaps job placement?

The interesting issue from an employment law perspective is the role that Helpling plays in this interaction between parties. For example, if Helpling turned out to be the employer of the cleaners, this would mean a long-term failure on its part to comply with the collective labour agreement for the cleaning and window-cleaning industry. If it were a question of job placement, this would mean Helpling had breached the Placement of Personnel by Intermediaries Act (Wet allocatie arbeidskrachten door intermediairs – “WAADI”) by requesting a commission on the amount payable to the cleaners.

The FNV, one of the largest trade union in the Netherlands, brought proceedings against Helpling on this issue. A recent decision given by the Amsterdam Court on 1 July 2019 shows the arguments put forward by the parties and how the subdistrict judge ultimately ruled. Below is the summary:

The dispute mainly concerned the question of whether there was a relationship of authority between Helpling and the cleaner. This is an essential element for assuming the existence of an employment contract. One characteristic of the relationship of authority is the power to give instructions. In this context, Helpling’s operational management demonstrates the following:

• The customer can contact Helpling by telephone and via the website, ask questions and submit complaints about the hired cleaner.
• Helpling offers the option of sending invoices on behalf of the cleaner, managing calendars and acting as the contact person for customers.
• If there are too many complaints, Helpling can close the cleaner’s account.

According to the subdistrict judge, although these circumstances appear to constitute the power of giving instructions on the part of Helpling, they did not outweigh the following:

• The cleaners themselves set the rate at which they offer their services. This is an important difference with the operations of, for example, Deliveroo and Uber.
• The cleaners can decide for themselves if and when they will carry out the work. Cleaners who don’t accept jobs do not have their rating reduced, as is the case with Uber, for example.
• The instructions for carrying out the assignment are provided by the customer.
• The only conditions that cleaners must comply with are Helpling’s general terms & conditions for use of the platform.

Based on these facts, the subdistrict judge came to the conclusion that there was no relationship of authority between Helpling and the cleaner and that there was therefore no employment contract. This also means that the criteria for agency work – which was also suggested in the proceedings as a form of contract – have not been met.

Does this mean Helpling has won the battle against the FNV? Not quite. The clue can be found in the title to this blog. The subdistrict judge ruled that there is a question of job placement between Helpling, the customer and the cleaner. Thanks to Helpling’s ‘involvement’, an employment contract is indeed formed between the customer and the cleaner. That is how Helpling meets the requirements for job placement, as set out in Article 1(1)(b) WAADI. Article 3(1) of the same Act then states that, in the case of job placement, Helpling may not ask the jobseeker (in this case the cleaner) for any compensation in return. This poses a major problem for Helpling, because its business model is to ask for a commission on the cleaner’s wages.

The ruling means that Helpling will need to act quickly in order to find another, creative way to make money. However, the fact that the subdistrict judge – in view of this relatively new form of service provision – considered it unreasonable to prohibit requesting commission payments with retroactive effect, does offer a ray of hope.

If you have questions, please contact one of our specialist of team Employment, Employee Participation & Mediation.