Making Labour Available versus Statement of Work: The Difference for Our Own Assessment

Why this difference matters for your work
When setting up or assessing an assignment, you help determine how the collaboration between the professional and the client is structured. Making labour available and a statement of work (SOW) are two different ways of organising work, with different legal consequences. Do you assess this incorrectly? Then you run the risk of an incorrect classification of the assignment, with possible consequences for the WTTA and for our client.

What is making labour available
With making labour available, a supplier lends out a worker to a hiring party. This worker works under the supervision and direction of the hiring party. The hiring party therefore itself determines how, when, and with which resources the work is carried out. Making labour available applies when three conditions are met:

1. A supplier lends out an employee to a hiring party
2. The supplier receives payment for this
3. The employee works under the supervision and direction of the hiring party

Think of a professional you place with a client, where the client directs the day-to-day work. This falls within the scope of the WTTA. From 2028, the client will only be allowed to work with an admitted supplier for this.

What is a statement of work
With a statement of work, a party agrees a concrete result with a client, not the deployment of a worker. The client is therefore purchasing a service or a project, not control over a person. Characteristic of an SOW:

• A defined result, project, or deliverable is set out
• The performing party itself organises how, when, and with whom the work is carried out
• The client does not directly direct the performing individual, but assesses the result

Think of a software company that delivers a complete IT system. The client does not determine who carries out which task or how the team works. They assess the end result.

The key difference
It comes down to supervision and direction. Does the client direct the professional's day-to-day work in substance? Then this is probably making labour available. Is the client purchasing a defined result, without directing the performance itself? Then it concerns a statement of work.

Important to remember when making your assessment: it is not the name of the agreement that is decisive, but the actual situation. Does a contract call itself an SOW, but does the client nevertheless direct the professional on a daily basis? Then this may still qualify as making labour available. Pay attention to this when drafting contracts and in conversations with clients.

The role of invoicing: hours versus milestones
The way of invoicing also gives an important signal about the nature of an assignment.

With hourly invoicing, the professional or partner charges the actual time worked. The client pays for the deployment of time, not necessarily for a concrete result. This fits with making labour available: the client hires in time and direction, and the fee follows the hours worked, regardless of exactly what is delivered during that time.

With milestone invoicing, the party charges a fixed amount per delivered result or project phase. The client pays for a concrete, defined result. This fits with a statement of work: the risk of delay or extra working hours lies with the performing party, not with the client. The fee is fixed, regardless of the number of hours the party needs.

Watch out for this combination
Does a client work with an SOW agreement, but does the party nevertheless invoice based on hours worked? Then this is a signal that the assignment actually tends towards making labour available. Hourly invoicing often indicates direction by the client over the deployment of time, rather than an independently delivered result. Flag this in good time, even if the agreement itself carries an SOW title.

Why this matters for the WTTA
The Wet toelating terbeschikkingstelling van arbeidskrachten (WTTA — the Act on Admission for the Provision of Workers) takes effect on 1 January 2027. This law applies to making labour available, not to a statement of work. Do we assess an assignment incorrectly? Then the client, the partner, and HeadFirst run the risk of:

• An incorrect classification of the assignment
• Working with a party without the proper admission
• Fines of up to €90,000 per violation

Does a client work with an SOW structure, but does he nevertheless direct the professional in practice, or does the party invoice on an hourly basis? Then this may still fall under the WTTA, even if the agreement does not describe it that way.

How to assess an assignment
When in doubt, ask the following questions:

• Does the client determine how, when, and with which resources the work is carried out? Then this points towards making labour available.
• Is the client purchasing a defined result or project, without directing the performance? Then this points towards a statement of work.
• Does the professional work within the client's organisational structure, alongside the client's own employees? Then this points towards making labour available.
• Does the party independently deliver a complete result, regardless of who carries out the work? Then this points towards a statement of work.
• Does the party invoice for hours worked, or fixed amounts per delivered result? Hourly invoicing more often points towards making labour available, milestone invoicing more often towards a statement of work.

Are you unsure about a specific assignment? Consult your manager or the Contract Management department and, if necessary, Legal, so that you classify the assignment correctly before setting it up further.