Like many other industries, the transportation industry is understaffed to keep up with growth. Job openings remain high and retirement attrition continues to increase. In this article, I discuss possible solutions.
Peer hiring
Peer hiring can be a solution when staff shortages occur. Collegial hiring is a variant of hiring personnel, where one entrepreneur makes his or her own personnel available to a fellow entrepreneur “on a non-profit basis”. Peer hiring does not involve the hiring out of personnel by the lender on a professional or business basis. Peer hiring is a temporary affair.
Peer-to-peer hiring involves the risk of hirer liability. This concerns liability for the payment of contributions and taxes on the hired employee’s wages. Agreements on this and, for example, employer liability should be made in a hiring agreement.
Employing self-employed truck drivers
In the transport sector, it is becoming increasingly common for carriers to hire self-employed drivers so that no employment contract needs to be concluded. However, when regularly or repeatedly using a self-employed driver, a transporter runs the risk that the tax authorities and/or a judge will subsequently determine that it is an employment contract rather than a contract for services.
According to the Road Goods Transport Act (Wwg), however, a transport company is prohibited from carrying out transport operations with drivers who are not employed by the company. This is the so-called requirement of employment.
To make it clear that an employment relationship exists, the transportation company and the driver must jointly prepare a statement that:
- the transport is carried out at the transport company’s expense and risk
- a pay and authority relationship exists between the transportation company and the driver;
- the driver is employed by the transport company, which has a Euro permit for professional transport.
Own transportation
Under the Road Goods Transport Act, it is permissible to hire a self-employed person as a driver in own transportation. In own transportation, the requirement of employment does not apply. Own transportation is the transportation of goods owned by the company or which the company trades, rents, leases, handles, processes or repairs.
ZZP-er
ZZP-ers must have their own Euro permit and their own truck. In practice, this last requirement in particular often causes problems because it requires a very large investment. Therefore, the form of leasing or renting is often chosen. A model agreement for professional freight transport has existed for some time: vbvo_beroepsgoederenvervoerder_branchemodel_dv10211z4ed.pdf (belastingdienst.nl)
This agreement contains all kinds of provisions that the parties must meet in order to demonstrate the self-employed driver’s independence (including a license, own car, own fuel, right to outsource transport again, etc.) This is where the shoe pinches. It is known that in the transport sector many self-employed drivers do not (cannot/will not) meet these requirements. If, in practice, the conditions of the model agreement are not met, there is a risk of retrospective taxation by the Tax Authorities regarding missed payroll taxes, although the DBA Act is currently not enforced by the Tax Authorities unless there is ‘malicious intent’ on the part of the client.
TLN wants an exception for professional freight transport in the cabinet’s new rules for self-employed workers. Licensed freight transport is already subject to quite a few rules.
Payrolling
In payrolling, a company’s staff is “employed” by the payroll organization. Legal employership and payroll administration are entirely the responsibility of the payroll organization. However, payroll companies are obliged to apply a number of elements from the industry’s collective bargaining agreement to payroll contracts: the so-called hirer’s remuneration. The problem is that the hirer does have to take care of recruitment and selection of the relevant employees itself, which remains difficult with an already growing staff shortage.
Moreover, payrolling is not entirely without risks. For example, the client is partly responsible for payroll taxes for the payrolled employees, among other things. If the payroll company does not pay these to the tax authorities, the tax authorities can come and collect them from the entrepreneur. Moreover, the payroll restriction is sometimes seen through, if the construction is set up solely to take away the labor law protection of the employees. Also, situations where it is unclear to the employee with whom he has an employment contract are not allowed: the employee must clearly and unambiguously agree to this construction.
Broadcast
The difference between payrolling and staffing is mainly in the recruitment of the workers. In payrolling, the transportation company recruits the workers itself; in temporary staffing, they are recruited for the employment agency.
Under the ABU collective agreement, the temporary employment agency is obliged to apply the hirer’s remuneration from day one. As a result, temporary workers in professional freight transport are entitled to the hirer’s remuneration in accordance with the Professional Goods Transport collective agreement from the first working day.
Incidentally, only temporary employment agencies, which are designated by the Minister of Infrastructure and the Environment, are allowed to dispatch drivers. A driver then needs a declaration of posting. He must be able to show this on the road during inspections. Finally, the temporary employment agency must have a designation from the Kiwa Register. In itself, temporary employment is a safe construction if a certified and specialized agency is used, but it often turns out to be quite expensive, with margins that are simply too small.
Conclusion
Thus, each form of engagement has its advantages and disadvantages. If you have any questions or would like legal advice, please contact Richard Ouwerling, telephone number 0031 10 209 27 77.
