Self-employment and quasi self-employment: a challenge for labour law

Over the years the (Dutch) labour market has witnessed a growing number of workers outside the realm of the employment contract. At the end of the past century the number of (in Dutch) ‘self-employed without personnel’ (a.k.a. independent contractor, a.k.a. sole trader) was around one in seventeen of all workers. Nowadays the estimation is one in ten and labour market analysts predict that the peak of this development has not yet been reached. A majority of them is truly self-employed, for others the qualification ‘would-be self-employed’ or ‘quasi employee’ is more fitting. This phenomenon is not exclusively Dutch. Many EU member states as well as Canada and the US have witnessed the influx of workers operating under the flag of independent contracting in many areas of the labour market.
This development raises several questions. The first one is that of differentiation. Suppose one wants to approach ‘dependent’ self-employed workers as well as their ‘customers’ with labour law regulations, how does one separate them from the group that can be considered truly independent? Or is this the wrong order and should one begin with a declaration of the basic protection one feels desirable for all workers for whom the qualification ‘real entrepreneur’ is not fitting? A more fundamental question, should one want to do that, is whether labour law is still able to regulate labour relations which we feel should be regulated.
This question has become even more pressing with the entry of what is referred to as 'labour on demand'. In promos this work type is sometimes depicted as win-win situation. For instance the website crowdwork.com sells its product to potential workers with slogans like ‘create your own schedule and work when you want, where you want’. And: ‘Learn new skills while doing work for some of the largest companies in the world’. And under the heading ‘Contribute’: "Your work will be in the lights of hundreds of websites including Staples, Overstock, Walmart and ThredUp." Now, who would not want that? As far as we are concerned the problem lies in the qualification ‘product’ or ‘commodity. Is labour becoming just that once again?
In this paper we approach the topic from a Dutch (or EU) perspective, but the questions are, we believe, universal. We begin with some data about the influx on the labour market of self-employment and its subcategory independent contracting (section 2). After that (section 3) we turn to the European legal context of independent contracting. In section 4 we discuss the issue at hand by looking at the entry on the (Dutch) labour market of two ‘new’ or better, unorthodox forms of self-employment. We conclude with some observations about the effects of this development for labour law and social policy.