Het Balletorkest Remplaçant – Amsterdam District Court, 09.02.2021 ECLI:NL:RBAMS:2021:545
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The Amsterdam District Court held that an oboist engaged by Het Balletorkest as a self-employed guest musician was legally an employee under Article 7:610 BW. The musician performed recurring work, had to follow the orchestra’s schedules and instructions, could not freely cancel accepted productions or arrange substitution, and had little control over her remuneration. The Court annulled the termination and determined that she remained employed for 28 hours per week.
1. Background and Legal Question
The musician worked as an oboist for Het Balletorkest and its predecessor from 2010. From 2013, she was engaged more regularly through individual assignments and a framework agreement describing her as a self-employed guest musician.
During her final three seasons, she participated in approximately 41% of the orchestra’s rehearsals and performances. When the orchestra stopped engaging her, she claimed that she had legally been an employee.
Toelichting
The Court had to determine whether the musician was genuinely self-employed or an employee despite the freelance agreement.
3. Remuneration and Entrepreneurship
The musician submitted invoices, but her remuneration was based on collectively determined rates. She had no meaningful opportunity to negotiate her own fee.
Her work for Het Balletorkest was her main source of income, and there was limited evidence that she operated as an independent commercial business.
Toelichting
Invoicing the orchestra and being registered as self-employed did not prove genuine independence. The musician had little influence over her rates and depended heavily on the orchestra.
4. Decision and Legal Significance
The Court concluded that the musician worked under an employment contract for 28 hours per week. Because the orchestra had not followed the statutory dismissal rules, the termination was annulled.
She remained employed and was entitled to continued salary from 1 August 2020 and to return to work.
Toelichting
The musician was legally an employee, so Het Balletorkest could not simply stop engaging her as though an ordinary freelance assignment had ended.
Tijdlijn
Amsterdam District Court
Bronnen
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