Music and the law: self-employed or employed?

Question from an SMPV member: I am a music teacher at a music school and also work as a choir director. After a longer period of illness, the school management only wants to pay me my hours as a teacher as sick pay and claims that my work as a choir director is a contractual relationship and therefore I am not entitled to sick pay. This is despite the fact that the teaching and choir conducting jobs were assigned to me together. Can this be legal?

Answer Dr. Kovacs:

1. The answer to this question depends on whether the activity as a choir director is carried out as part of an employment relationship or as a self-employed activity.
2. Almost any activity can be carried out on a self-employed or employed basis. Differences of opinion regularly arise about this. For this reason, the activity should be described in writing in a contract. In particular, the question should also be clarified as to whether it is an employment or an assignment. Ultimately, it is the wording of the specific contract (and not the title) that determines whether the activity is employment or freelance work. The more precisely this is described, the clearer the legal classification can be.
3. The courts have developed an extensive practice for defining these types of activities. They consider the following demarcation criteria to be essential:
   3a) The following characteristics in particular speak in favor of self-employment:
   - Free determination of working hours by the choirmaster
   - The choirmaster is not bound by the instructions of the choir board and is responsible for his or her own activities.
   - The program is selected by the choirmaster.
   - The choirmaster must pay all social security contributions himself.
   - The choirmaster receives a fee for independent work (not a salary).
   - No remuneration is paid in the event of illness or for vacations.
   3b.) The following in particular argues in favor of self-employment (employment as an employee):
   - The choirmaster is employed as an employee.
   - The choirmaster is part of the organization of the employer (association, school, etc.) and follows its instructions.
   - The program is selected by the employer.
   - The employer pays a salary and deducts social security contributions from it.
   - The employer pays sickness and vacation in accordance with legal requirements.
4. Only in an employment relationship is the continued payment of salary for a limited period of time, depending on the duration of employment, prescribed by law. In contrast, self-employed persons are generally required to provide for themselves and receive nothing in the event of illness. This is subject to cases in which it is expressly stipulated in the specific contract or in a collective employment agreement that benefits are paid by the client in the event of illness.
5. The bottom line is that the individual delimitation criteria must be determined and classified in the present case. The choir director subsequently stated that she also has to follow the music school's timetable for her choir conducting activities and that the concert programs are predetermined. In addition, AHV/IV/EO contributions are deducted from her wages for all activities. In addition, the teaching activity is contractually regulated together with the choir conducting. These are strong indications that both activities are to be treated uniformly as an employment relationship. This means that the sick pay must be paid equally for both activities.