Under the Social Insurance Funding Act (Wfsv), an employer is automatically affiliated to the sector to which its activities belong. The Wfsv Regulations contain an annex listing the relevant industry sectors for each sector. If an activity is not listed here, the work is classified under the sector in which the work carried out is most similar in nature. This is known as assimilation. It is not the name of the company or the collective labour agreement that is decisive, but the actual activities carried out.
Structural work or finishing work?
An employer who installs stretch ceilings is covered by the collective labour agreement for the finishing sector. However, the Tax and Customs Administration has classified him under sector 17: retail and crafts. The employer has lodged an objection. He believes he belongs to sector 3: construction. The Court of Appeal analyses the businesses in sector 3. What they have in common is that they focus on structural work, the structural part of a building. Examples include residential and non-residential construction, road construction, pile-driving companies and roofers. Companies specialising in finishing work, on the other hand, are classified under different sectors. Upholstery and wallpapering firms fall under sector 17, painting firms under sector 56 and plastering firms under sector 57. This distinction between structural work and finishing work proves to be a key criterion.
Upholstering ceilings
The employer installs stretch ceilings: ceilings made of stretched plastic sheeting fitted beneath existing ceilings. This does not constitute structural work. The Court of Appeal, on the other hand, sees a parallel with the domestic upholstery trade. After all, the employer covers spaces – in particular ceilings – with a material, in this case plastic. The classification under sector 17 is therefore correct.
Collective agreement not relevant
The employer argues that he falls under the phasing-out provision of the collective agreement. The Court of Appeal rejects this argument. When determining sector classification, it is irrelevant which collective agreement the employer is covered by. The sole criterion is the nature of the work. This is an important point for employers who believe that their collective agreement classification automatically determines their sector classification. That is not the case.
What about suspended ceilings?
The employer also invokes the principle of equality. The Tax and Customs Administration applies a policy under which suspended ceilings are classified as construction work. Why, then, are stretch ceilings not? The Court of Appeal ruled that stretch ceilings and suspended ceilings are different systems involving different types of work. There is no question of comparable cases. An appeal based on policy for comparable businesses will only succeed if the work involved is genuinely comparable.