| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 210 |
| Hearing date | 23 Aug 2012 |
| Determination date | 23 August 2012 |
| Member | J Crichton |
| Representation | K Murray, S Boyce ; S England, C North |
| Location | Nelson |
| Parties | Vallance v Nelson Brak Services Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Authority found respondent had no idea purporting to change nature of contractor arrangement between parties and mistaken execution of two completely inappropriate employment agreements did not change position – Found no change in parties’ relationship after execution of employment agreements – Found respondent had little real control over applicant’s activities as applicant set own hours of work, determined own rounds and did not account for applicant’s time with exception of claiming payment for number of days worked at end of each month – Found applicant accessory to respondent’s business rather than integral to it as applicant only person performing certain mix of activities and provided own vehicle – Found plain applicant providing services on own account as accounted for tax as self-employed person and invoices to respondent provided GST on all amounts claimed – Found applicant independent contractor – No jurisdiction |
| Abstract | Applicant sought arrears of holiday pay. Respondent claimed applicant independent contractor. Parties in contractor relationship for nine year period but respondent sought to address significant trading losses and reviewed arrangement with applicant. Parties signed standard form employment agreement (“EA one”) expressed to be for one year term. Respondent claimed simply pulled blank employment agreement from office and had applicant sign it. Respondent claimed arrangement intended to be temporary and parties’ would return to original relationship at end of one year period. Only difference between arrangements before and after execution of EA one reduction of applicant’s remuneration and vehicle allowance. Applicant chose own start and finish times, did not attend work occasionally and paid by respondent after filing invoices. Applicant claimed paid for statutory holidays after invoicing respondent. Subsequent employment agreement (“EA two”) entered by parties but gap between expiry of EA one and commencement of EA two.;AUTHORITY FOUND –;JURISDICTION: Reason respondent paid applicant for statutory holidays included in applicant’s invoice because no breakdown in invoice to indicate what claim for. Applicant failed to explain how applicant employee between expiry of EA one and commencement of EA two when no employment agreement in place. Respondent had no idea purporting to change nature of contractor arrangement between parties and mistaken execution of two completely inappropriate employment agreements did not change position. No change in parties’ relationship after execution of employment agreements and applicant’s accountant prepared applicant’s accounts on basis applicant in business on own account. Respondent had little real control over applicant’s activities as applicant set own hours of work, determined own rounds and did not account for applicant’s time with exception of claiming payment for number of days worked at end of each month. Applicant accessory to respondent’s business rather than integral to it as applicant only person performing certain mix of activities and provided own vehicle. Plain applicant providing services on own account as accounted for tax as self-employed person and invoices provided GST on all amounts claimed. Applicant independent contractor. No jurisdiction. |
| Result | Application dismissed; Costs reserved |
| Main Category | Jurisdiction |
| Cases Cited | Bryson v Three Foot Six Ltd [2003] ERNZ 581 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Christchurch_210.pdf [pdf 158 KB] |