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Femme travaillant à l'extérieur

Employee status and
False independent

Employee status
 

3 elements characterize the salaried employment contract
  • The service, namely the personal commitment to provide work;
  • Compensation
  • The relationship of authority between the employer and the worker

The essential characteristic of the employment contract is the link of legal subordination between the employer and the worker.
Differences with the self-employed:
  • The employee has an obligation of means.
  • Lack of autonomy, hierarchical control
  • Payment of a lump sum salary.

Independent status
 

Self-employed are any natural person who exercises a professional activity in Belgium by reason of which he is not engaged in the links of an employment contract or of a statute.

Differences with the employee:
  • The self-employed have an obligation of result.
  • Autonomy, freedom to organize working time, freedom to organize work
  • Payment of fees.
 

 

Requalification of the contract: Change from “bogus self-employed” to salaried worker
 

Who can request such a requalification?
  • ONSS Social inspection
  • Worker
  • INASTI

Consequences of requalification:
  • Payment of arrears of remuneration
  • Recovery
  • Civil and criminal sanctions
  • Limitation period
  • Compensation for damage: CC1382
  • Recovery of INASTI contributions
  • Recovery of unduly received benefits
  • ONSS
    • Payment of both personal and employer contributions on
      remuneration received over the past 3 years (if fraud proved: increased to 7 years)
    • + Contribution increases set at 10%
    • + late payment interest: 7% per year

How to avoid requalification?
 

  • Write an agreement
  • Contract rather with a company than with a natural person
  • Don't demand exclusivity
  • Avoid controlling working time
  • Avoid providing the self-employed with all the means enabling them to work
  • Share financial and economic risks
  • Do not impose conditions of purchases or supplies
  • Plan for the possibility of a replacement
  • Require the self-employed to insure their civil liability towards you
  • Apply general business conditions
  • Set a different notice from that of an employee
  • Be extra careful if you are active in one of the 5 sectors covered by the law of 25/08/2012 (construction, security, transport, cleaning, agricultural and horticultural work)
     

Extracts of articles given for information, from external sources which may no longer be adequate.

ASCEND ACCOUNTANT declines any responsibility related to these articles.

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