The deployment of self-employed workers (zzp’ers) remains a hot issue in the healthcare sector. Over the past year, the Netherlands Authority for Consumers and Markets (“ACM”) has informed various healthcare (umbrella) organisations about the application of competition law to the deployment and procurement of personnel, including self-employed workers. The ACM indicated that it has received multiple notifications concerning agreements or coordination between healthcare employers regarding the non-engagement of self-employed workers or on their fees. Such agreements are generally in breach of competition law.
ACM oversight of the labour market is not a new phenomenon. In this earlier blog post, we already discussed anti-competitive agreements in the labour market in general terms.
Cooperation to address labour shortages
Healthcare employers may cooperate in various ways to address labour shortages. The principal framework for cooperation between healthcare employers is formed by the Dutch and European cartel prohibition, pursuant to which anti-competitive cooperation or agreements are prohibited. It is therefore important that forms of cooperation do not adversely affect healthcare personnel – whether they are employees or active as self-employed workers.
The ACM has indicated that healthcare employers may, subject to conditions, cooperate on, among other things:
- Research into the labour market
- Training and education of healthcare personnel
- Promotional activities for working in healthcare
- Establishment of uniform qualification and experience requirements
- Setting up a digital platform through which personnel can provide services for another healthcare employer
- Offering employment contracts for multiple healthcare employers
- Contracting with recruitment or staffing agencies
- Establishing a regional pool for self-employed workers
For example, several healthcare employers within a region may choose to jointly establish a purchasing consortium that negotiates with a staffing agency on their behalf. According to the ACM, the starting point should be that healthcare employers continue to determine their own rates at which they wish to engage self-employed workers, and that healthcare employers remain free to also work with other staffing agencies and vice versa.
Another option for healthcare employers is to establish a joint digital platform for fulfilling shifts. Via this platform, employees of different healthcare institutions can fulfill open shifts at other healthcare institutions. In this regard, it is important, among other things, that participation for employees is optional, and that there is no coordination between participating healthcare employers regarding employment conditions. Furthermore, the initiative must in principle be accessible to other healthcare employers in the region. In principle, there is no obligation for healthcare employers to grant self-employed workers access to the platform, but it is in any case not permissible for employers to mutually agree not to use self-employed workers or to engage them only as a last resort.
Cooperation with other employers
Not all forms of cooperation or agreements between healthcare employers are permissible. As a general rule, agreements on matters on which healthcare employers compete with each other in the ‘procurement’ of employees or self-employed workers are in principle not permitted. This includes, among other things:
- Agreements on rates and employment conditions (outside collective bargaining agreements)
- Agreements not to recruit or engage each other’s personnel
- Agreements on the (non-)engagement of self-employed workers
- Agreements on the conditions for engaging self-employed workers
- Exchange of information on wages, rates and employment conditions of own personnel and self-employed workers
It follows from this that it is not permissible for healthcare employers to make agreements regarding the non-engagement or reduced engagement of self-employed workers or to engage self-employed workers only as a last resort. The same applies to agreements on maximum fees for the engagement of self-employed worker or agreements to assign self-employed workers a (similarly large) mandatory number of shifts as regular employees. It is also not permissible for healthcare employers to jointly announce that they will no longer engage self-employed workers in order to comply with applicable legislation, such as the Employment Relationship Act (DBA). However, healthcare employers may independently decide not to deploy self-employed workers.
The role of trade and umbrella organisations
The cartel prohibition also applies to trade and umbrella organisations. The above examples therefore also apply if agreements are made within trade and umbrella organisations. This means that they are in principle also not permitted to send messages or provide advice on whether or not to engage self-employed workers. Such messages or advice may namely be interpreted as a call for collusion. Furthermore, these organisations have the potential to serve as a platform for prohibited coordination between employers. Within trade and umbrella organisations, information exchange protocols are therefore generally used.
Discussing options
The ACM emphasises that there are various options available for healthcare employers to cooperate in addressing labour shortages. SOLV regularly advises its clients on the permissibility agreements in the healthcare sector, including on labour market aspects. For questions, you can contact Kim van Haastrecht or Jelle van den Biggelaar.
