| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 569 |
| Hearing date | 25 Nov 2013 |
| Determination date | 11 December 2013 |
| Member | R Larmer |
| Representation | D Prasad ; D Hall |
| Parties | Atkinson v Phoenix Commercial Cleaners Ltd |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – Applicant had three separate engagements with respondent – Applicant informed engagements were as contractor – Applicant did not sign independent contractor contract – Applicant commenced work – Applicant signed confidentiality agreement – Confidentiality agreement referred to applicant as subcontractor – Whether respondent agreed to provide employment agreement – Applicant not registered for GST – Respondent provided company vehicle when applicant unable to provide own transport – Applicant provided cleaning materials and branded tee shirt – Applicant submitted timesheets to respondent – Payslips record withholding tax and PAYE - Commercial cleaner |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Applicant did not make counter-offer. Available documentation supports existence of independent contract arrangement. Respondent never employed staff. Unusual for applicant to work before being presented with employment agreement. Intention of parties suggest applicant independent contractor. Fundamental test supports employment relationship. Applicant could arrange with client days and hours worked. Respondent would arrange cover when applicant not working. Applicant able to accept or reject work. Respondent had limited control over applicant. Control test indicates applicant independent contractor. Respondent made clear to clients cleaners subcontractors. Applicant not integrated into respondent’s business. Integration test indicates applicant contractor. Timesheets indicative of independent contractor relationship. Payslips indicative of employment relationship. Industry practice neutral. Applicant unable to establish employment relationship. Applicant independent contractor. No jurisdiction. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6 - ERA s6(1)(a) |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] NZSC 34; [2005] ERNZ 372; [2005] 3 NZLR 721 |
| Number of Pages | 7 |
| PDF File Link: | 2013_NZERA_Auckland_569.pdf [pdf 156 KB] |