| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 362 |
| Hearing date | 3 Oct 2012 |
| Determination date | 12 October 2012 |
| Member | E Robinson |
| Representation | Y Pan (in person) ; P Zhang (in person) |
| Location | Auckland |
| Parties | Pan v Zhang |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Authority found no evidence of orally agreed terms or conduct such as to establish employment relationship between parties – Found applicant not subject to respondent’s control in provision of services or integral to respondent’s business operation – Found respondent did not deduct PAYE from payments made to applicant, applicant provided own tools and considered at liberty to accept other work during days not required to work for respondent – Found applicant in business on own account – Found applicant independent contractor – No jurisdiction – Painter |
| Abstract | Applicant engaged by respondent as painter. Applicant sought arrears of wages. Respondent claimed applicant independent contractor. Respondent engaged applicant to carry out work at specified site. Applicant advised respondent of hours worked and paid in cash but no timesheet completed and no written employment agreement. Applicant not required to work every day, not paid for days not worked and able to carry out other work during these times if applicant wished. Applicant provided own tools but respondent provided paint.;AUTHORITY FOUND –;JURISDICTION: No evidence of orally agreed terms or conduct such as to establish employment relationship between parties as no documents referring to applicant as employee and no payslips indicating PAYE deducted from payments made to applicant. Respondent flexible as to when applicant worked, applicant carried out work when work available and did not expect to be paid when work not available. Applicant not subject to respondent’s control in provision of services or integral to respondent’s business operation. Parties gave taxation arrangements no more than passing consideration but respondent did not deduct PAYE from payments made to applicant. Applicant provided own tools and considered at liberty to accept other work during days not required to work for respondent. Applicant in business on own account. Applicant independent contractor. No jurisdiction. |
| Result | Application dismissed; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;Wages Protection Act 1983;Wages Protection Act 1983 s4 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372; [2005] 3 NZLR 721;Cunningham v TNT Express Worldwide (New Zealand) Ltd [1993] 1 ERNZ 695; [1993] 3 NZLR 681;Muollo v Rotaru [1995] 2 ERNZ 414;Singh v Eric James & Associates Ltd [2010] NZEmpC 1 |
| Number of Pages | 6 |
| PDF File Link: | 2012_NZERA_Auckland_362.pdf [pdf 159 KB] |