| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 312/05 |
| Hearing date | 24 Jun 2005 |
| Determination date | 17 August 2005 |
| Member | D King |
| Representation | A Gallie ; R Harrison |
| Location | Auckland |
| Parties | Schaw and Anor v Compac Sorting Equipment Ltd and Anor |
| Other Parties | Schaw, Compac Sorting Equipment Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Applicant initially employed on fixed term contract to carry out work for respondent in overseas location - Number of subsequent arrangements for applicant to continue to provide services to respondent - During final arrangement applicant offered employment with overseas subsidiary of respondent conditional on applicant obtaining residency status in that country - Offer stated until then work for respondent to continue under current contractor arrangement" - Offer accepted by applicant but residency status never obtained - Applicant continued to work in same manner throughout various arrangements although some different duties performed in anticipation of taking up conditional offer - Employment status during final arrangement at issue - No common intention as to status except during first fixed term contract - Respondent subsequently maintained applicant independent contractor and applicant consistently maintained was employee - Acceptance of conditional offer was not acceptance that current status was contractor - In any case, that point only one of many relevant factors - Duties and conditions similar throughout time with respondent - Provided with transport, cell phone, tools, laptop and company credit card - Performed work as required and directed - Paid salary by respondent on regular basis and no opportunity to profit from any work completed - Applicant unaware of invoices respondent created for payment purposes - Did not run separate business identity, work for other people, hire employees, or advertise - Applicant integral part of respondent's business - Economic reality was that applicant not in business for himself - Fact that tax never paid in overseas location or in New Zealand neutral factor - Applicant was employee throughout final arrangement including time of dismissal - Technical and operator support" |
| Result | Question answered in favour of applicant ; Costs reserved |
| Statutes | ERA s6 |
| Cases Cited | Stevenson Jordan & Harrison Ltd v MacDonald [1952] 1 TLR 101 |
| Number of Pages | 7 |
| PDF File Link: | aa 312_05.pdf [pdf 38 KB] |