| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 317/02 |
| Hearing date | 14 Oct 2002 |
| Determination date | 29 October 2002 |
| Member | A Dumbleton |
| Representation | M Horn (In person) ; M Beech |
| Location | Auckland |
| Parties | Neal & Anor v New Zealand Livestock Company Ltd |
| Other Parties | Horn |
| Summary | JURISDICTION - Joint application to determine whether applicant employee or independent contractor for holiday pay purposes - Employment spanned both Employment Contracts Act 1991 and Employment Relations Act 2000 - Different tests applied to different periods of employment - Intention test under ECA - Real nature test under ERA - Contract created uncertainty on its face - Subjective intention of respondent to form contract for services - Applicant welcomed opportunity to receive remuneration without tax deductions - Indicia of employment - Work part and parcel of respondent's business - No separate business - Control and direction not exercised over applicant due to his specialised knowledge - Respondent's subjective intention not achieved by terms of contract - Test under ECA clearly pointed to employment relationship - Findings as to true nature of relationship under ECA test gave rise to finding of employment relationship under ERA test - Authority investigation suspended to allow parties to determine outstanding holiday pay - Horse trainer |
| Result | Question answered in favour of applicant ; Costs to lie where they fall |
| Statutes | Holidays Act 1981;Income Tax Act 1994 |
| Cases Cited | Cunningham v TNT Express Worldwide (NZ) Ltd [1993] 1 ERNZ 695;Curlew v Harvey Norman Stores (NZ) Pty Ltd [2002] 1 ERNZ 114;Lowe Walker Paeroa Ltd v Bennett [1998] 2 ERNZ 558 |
| Number of Pages | 9 |
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