| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 69/06 |
| Hearing date | 10 Jan 2006 |
| Determination date | 09 March 2006 |
| Member | R A Monaghan |
| Representation | J McCarron (in person) ; R Wood |
| Location | Auckland |
| Parties | McCarron v Reynolds Realty Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - No written agreement - Respondent relied on industry practice that substantial majority of real estate salespeople were contractors - However Court of Appeal judgment Challenge Realty Ltd v Commissioner of Inland Revenue found that Real Estate Agents Act 1976 required effective control by real estate agents of salespeople and they were employees - Section 51A Real Estate Agents Act 1976 applied if parties expressly agreed that relationship one of employer and independent contractor - No evidence of express agreement - Authority obliged to follow case law - Applicant an employee - PRACTICE AND PROCEDURE - Respondent faced prospect of liquidation - Authority considered resolution of problem could be assisted if applicant took opportunity to satisfy himself of facts surrounding respondent's financial position - Had directed that parties address this matter - Applicant now purported to require Authority to issue decision on substantive claim - Authority would have referred matter to mediation were it not for apparent inevitability of liquidation - However Authority would accord urgency to matter and proceed to investigate and determine merits - Real estate salesperson/rental property manager |
| Result | Application granted ; Costs reserved |
| Statutes | ERA s157;ERA s159;ERA s160(1);Real Estate Agents Act 1976 s16;Real Estate Agents Act 1976 s26;Real Estate Agents Act 1976 s42;Real Estate Agents Act 1976 s46;Real Estate Agents Act 1976 s51A;Real Estate Agents Act 1976 s51A(5) |
| Cases Cited | Challenge Realty Ltd v Commissioner of Inland Revenue [1990] 3 NZLR 42 |
| Number of Pages | 4 |
| PDF File Link: | aa 69_06.pdf [pdf 25 KB] |