Amsterdam court rules that Temper is not an employment agency; unions to appeal

The District Court of Amsterdam has reached a verdict in a case brought forward by trade unions FNV and CNV against Temper, a platform for self-employed individuals, asserting that Temper acts as an employer for the workers on its platform.

After four years of legal proceedings, the court has ruled in favor of Temper, confirming that it is not considered an employment agency.

Temper CEO Maarten Zoomers says, “People consciously choose the freedom and flexibility that working through Temper offers, the possibility to adapt work to their life instead of the other way around. Unlike traditional forms of ‘flex’, which are actually only flexible for employers, our model offers real autonomy and flexibility to workers. We are therefore pleased with the court’s ruling, which confirms that this model has a right to exist.”

FNV & CNV to appeal

This ruling follows an earlier ruling (12 October 2023) in which the Court had already concluded that the unions were no longer allowed to act on behalf of the people who had worked via Temper.

As a result, the Dutch union — FNV & CNV plans to appeal against the verdict.

“An incomprehensible ruling, which conflicts with other case law from recent years in other platform cases. We have no choice but to appeal’, says FNV and CNV.

Zakaria Boufangacha, Vice-chair of FNV says “This judgment of the judge is at odds with all the case law of the past years in all other platform cases. It is also in conflict with the judgment of the labor inspectorate in 2021. And with the advice last week of the Advocate General to the Supreme Court in the Helpling case. It is even in conflict with the upcoming legislation.”

Piet Fortuin, chairman of CNV, adds, “Temper is undermining the foundations of the labour market. It is really time for politicians, the tax authorities, and hirers to put a stop to this. Because these types of constructions are not good for employees and not good for the labour market and society as a whole.”

Boufangacha adds, ‘Recently, the labour inspectorate ruled in its report on YoungOnes that this company is a temporary employment agency. And this company uses exactly the same methods as Temper. That is why it is incomprehensible that the judge rules differently than the labour inspectorate. That is why we are appealing.’

What happened?

In October 2020, Dutch unions FNV & CNV issued a summons against the online platform Temper, which deploys temporary workers in various sectors.

The case aimed to legally establish that Temper should be recognised as the (temporary) employer of the self-employed individuals, also known as FreeFlexers, who utilise the platform for work.

The judgement

“In short, the essential elements of the temporary employment contract, namely the formal authority of the temporary employment agency and the payment of wages by that temporary employment agency, are not met at all. The third essential element, the personal performance of work, has not been fulfilled, if at all,” says the court.

The court also stated that there was insufficient evidence to support the notion of a temporary employment contract between Temper and the workers.

As a result, the court rejected the claims presented by FNV and CNV that these were indeed temporary employment contracts with Temper.

Temper: What you need to know

Temper, founded in 2015, is the first and largest digital noticeboard for “flexible workers” in the Netherlands.

The company was founded in response to the need for greater freedom and flexibility in the labour market—to address the mismatch between labour supply and demand.

The Dutch company enables people to earn flexibly as additional freelance work while studying or starting a business.

Through its platform, flexible workers find companies offering short-term jobs in the hospitality, retail, and logistics sectors.

Temper’s noticeboard has over 100,000+ registered job seekers and 10,000+ companies, most SMEs. The total number of hours worked via the platform is growing at an average rate of 300 per cent per year, claims the company.