| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2018] NZERA Auckland 133 |
| Hearing date | 4-Apr-18 and 5-Apr-18 (2 days) |
| Determination date | 30 April 2018 |
| Member | J Trotman |
| Representation | A Higgins ; K Nicholson |
| Location | Auckland |
| Parties | Tenaki and Anor v Renew & Protect Ltd and Ors |
| Other Parties | Tenaki ; Trainer Investments Ltd, Trainer Family Trust 2007 |
| Summary | JURISDICTION – Whether applicant's employees or independent contractors |
| Abstract | AUTHORITY FOUND –;JURISDICTION: No written employment agreement. No clear mutual intentions from beginning of working relationship. Meeting and email support applicants to be contractors. Understanding that applicant’s would pay their own taxes. Second applicant had good understanding of her obligations and rights under the Employment Relations Act 2000. Both applicants were not paid holiday pay, annual leave or statutory leave. Second applicant controlled when and where she worked. All tools and equipment required for performance were provided by her apart from two items which were not indicative of an employment relationship. Work performed by second applicant not integral to the business. She also contracted to three other entities. First applicant provided with work and directed when to undertake work. First applicant had no experience carrying out work and required training and supervision. First applicant was integrated into the business where tools and equipment were provided to him. Applicants were aware that withholding tax is tax paid by contractors. Foregoing factors indicate contract for services. Applicants were contractors. No jurisdiction. |
| Result | Application declined ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6(1);ERA s6(3);ERA s6(3)(a);ERA s174E |
| Cases Cited | Bryson v Three Foot Six Ltd (No2) [2005] ERNZ 372 (SC);Downey v New Zealand Greyhound Racing Association Inc (2006) 3 NZELR 501 (EmpC);Fagotti v Acme & Co Ltd [2015] NZEmpC 135;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC) |
| Number of Pages | 15 |
| PDF File Link: | 2018_NZERA_Auckland_133.pdf [pdf 658 KB] |