On Monday November 26th De Appel hosted the event ‘Improving the Position of Independent Curators’. The leading theme was given by the third and last focus area in the preliminary statement written by the Platform BK Working Group on Curatorial Freelancers: the broader social project in defence of self-employed workers. To start thinking about labour conditions, Peter van den Bunder (Kunstenbond) was asked to share information on the juridical, fiscal and labour laws that are of interest for independent curators.
Peter started his presentation with the main social-fiscal principles that apply to all workers in the Netherlands, including independent curators. Perhaps obvious but still important to mention are the general rules about income tax: income tax is only paid in the country of residence according the prevailing rules of this country, but there are always exceptions to the rules. The Dutch tax system divides three sources of income tax: labour tax, shareholder tax, and wealth tax. Labour tax – as the name indicates – concerns the income that comes from work, by a freelance curator for instance. The other two taxations concern shareholders or wealthy individuals.
There are three categories for labour taxation regarding how income can be generated: profit of the self-employed, labour as an employee, result from other activities. When you are self-employed you don’t have to pay payroll tax, which is paid by the organization in the case of an employee. The payroll tax is of course used for the social security that entrepreneurs don’t pay for and also cannot rely on. It is insightful to know that the category of the freelancer does not exist in Dutch law; a worker is either an employee or an entrepreneur. However, there is still a grey area between these two positions.
To avoid labour agreements, employers have worked with people on the basis of flexible and temporary working conditions. Difficulties arise in such cases because there is no minimum wage and social security for false self-employed flexible and temporary workers, or entrepreneurs. These are only applicable for employees. There are three criteria to define if someone is an employee or an entrepreneur: wage, personal labour and authority. If there is a regularly paid ‘wage’, a personal obligation to work, and a situation in which you are told what to do when, then you are an employee. Or in the words of Peter: if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck. Peter concluded his presentation with some general recommendation for self-employed curators: be aware of your social-fiscal status, make contracts or agreements, compare your fee with wages of comparable positions in the collective labour agreement of museums, or use the guideline for artists’ fees as a reference.
There were several responses and questions during Peter’s presentation to clarify matters. At the end, the round of reactions from the attendees started with a comment from economist and researcher René Goudriaan, who was involved in the research towards the guideline for artists’ fees. In the context of improving working conditions for independent curators, René stated that there is a strong desire in the cultural sector and in public policymaking to find out what it would costs to implement the Fair Practice Code. Most probably research will be presented in the beginning of 2019, starting with two or three subsectors. The difficulty in this research is that according to the number of FTE’s in the institutions, salaries are not too bad in the cultural sector. However, freelancers or employees do a lot of work for cultural institutions in their own time, i.e. outside of the contracted and paid hours. These unpaid hours should be included in the calculation for a fair practice.
This difficulty highlighted the need for transparency in the cultural sector. If we want to improve the situation of independent freelancers, we will need to develop tools for professionalization that establish a standard for the costs of our labour. A calculator for freelance curators could be such a tool, a ‘wage building’ that is currently in development by the presentation-institutions could also be such a tool. These are needed to improve the current, unsustainable situation.
This raised the question of whether a guideline is legally binding. ‘We can develop such tools, but when institutions can opt out – apply or explain – it is only a moral code, not a legally binding standard,’ commented an attendee. Interestingly, although a guideline is not legally binding in itself, a contract stating that remuneration is done according to a guideline is legally binding. Next to that, funding bodies can use guidelines as criteria. All in all it would be good to avoid divisive disputes within the cultural sector and to rather cultivate an ethic of mutual support by negotiating on what can be done, as many institutions are in the same boat. Most of the attendees agreed that a guideline, a pricing model, or budget examples would really help in the development of their practice.
The last question was about the legal possibilities that are available if you consider yourself to be an employee but the organization you work for considers you a freelancer. ‘Can I push for a contract if I have worked for an organization for over half a year?’ was the question. The answer is that it depends on the agreement you have made at the beginning of the working period. Still it also depends on the three criteria that were mentioned at the beginning of the presentation: wage, personal labour and authority. This question highlights the limbo situation that freelancers working for an institution find themselves in: the grey area between an employee and an entrepreneur. Working towards fair practice will take some years, but we know where to start.