| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 332/05 |
| Hearing date | 12 May 2005 |
| Determination date | 29 August 2005 |
| Member | D King |
| Representation | S Judd ; I Davidson |
| Location | Auckland |
| Parties | McLean v Buy West Realty Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Respondent alleged applicant an independent contractor as he fell within definition of salesperson" in s2 Real Estate Agents Act 1976 - Salesperson did not include employee whose work primarily clerical - Authority accepted salesperson and branch manager were separate positions and that branch manager did not need to act as salesperson - However applicant's work not clerical but managerial - Highly arguable that branch manager who sold land or business was deemed to be a salesperson - Applicant fell within definition of "salesperson" and therefore independent contractor - In case this was wrong, Authority considered relevant tests - Clear intention expressed in contract that applicant a contractor - In minor respects applicant under respondent's control but applicant had ability to control how and when he worked which had direct impact on earning ability - Applicant "part and parcel" of business - Applicant provided some equipment and claimed tax rebates, was registered for GST and did not receive holiday pay or sick leave - On balance, applicant an independent contractor - Real estate branch manager" |
| Result | Application dismissed ; Costs reserved |
| Statutes | ERA s6;Real Estate Agents Act 1976 s2;Real Estate Agents Act 1976 s17;Real Estate Agents Act 1976 s46;Real Estate Agents Act 1976 s51A;Real Estate Agents Act 1976 s54(2);Real Estate Agents Act 1976 s54C(d) |
| Cases Cited | Bank voor Handel en Scheepvaart v Slatford [1952] 2 All ER 956;Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173; [1968] 3 All ER 732 |
| Number of Pages | 5 |
| PDF File Link: | aa 332_05.pdf [pdf 36 KB] |