| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 151 |
| Hearing date | 8 Apr 2014 |
| Determination date | 17 April 2014 |
| Member | R Larmer |
| Representation | C Mansell ; S Wilson, G Peachey |
| Location | Auckland |
| Parties | Harrington v Flavour Creations Pty Ltd and Anor |
| Other Parties | Eriksen |
| Summary | JURISDICTION - Whether applicant employee or independent contractor - Australian company - Whether applicant requested to become independent contractor after employment agreement (EA") signed or whether respondent asked applicant to manage own payroll in New Zealand - New Zealand business manager" |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Mutual intention applicant would be employee when EA signed. EA, documents concerning appointment of applicant, e-mails and request for leave strongly supported existence of employment relationship. Invoices issued by applicant's company (A") and fact A identified as applicant's employer in tax records only documents supporting existence of independent contractor relationship. Initial mutual intention applicant would be employee not changed by mutual agreement. Apart from payment arrangements, parties acted in accordance with EA including in relation to commission payments, reporting arrangements, leave requests, hours of work and post-termination obligations. Practical operation of arrangement indicated employment relationship. While fact A responsible for payment of applicant and deduction of applicant's tax suggested applicant employed by A, A merely acted as New Zealand-based payroll company for respondent to simplify administration. Applicant did not obtain benefits of being in business on own account. Significant degree of control exerted over applicant by respondent. Applicant had ability to profit from endeavours only in respect of commission payments and fundamental test favoured existence of employment relationship. Applicant integrated into respondent's business. Insufficient evidence about industry practice. Applicant employee." |
| Result | Application granted ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA;ERA s6;ERA s6(2);ERA s6(3);Health and Safety in Employment Act 1992 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372 ; [2005] 3 NZLR 721;Hutton v Provencocadmus Ltd (in rec) [2012] ERNZ 566;Telecom South v Post Office Union [1992] 1 ERNZ 711 ; [1992] 1 NZLR 275 |
| Number of Pages | 14 |
| PDF File Link: | 2014_NZERA_Auckland_151.pdf [pdf 195 KB] |