| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 364/06 |
| Hearing date | 14 Nov 2006 |
| Determination date | 30 November 2006 |
| Member | R A Monaghan |
| Representation | J Wu (in person) ; B & C Hamilton |
| Location | Auckland |
| Parties | Wu v Hamilton Holdings (2002) Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Applicant real estate salesperson - At interview applicant told position commission only" - "Commission only" not synonymous with "contractor" - Discussion did not amount to express agreement to principal/contractor relationship - Authority accepted applicant received written agreement - Nothing to suggest applicant's attention drawn to clause stating engaged as contractor - No evidence of express agreement - Section 51A Real Estate Agents Act 1976 did not apply - Applicant's failure to respond to anything in employment agreement meant Authority prepared to imply or infer at least acquiescence to independent contractor clause - However, not determinative - Discussion about registration for GST, applicant's use of own vehicle, and agreement to pay salesperson's registration fee weighed in favour of contractor relationship, although fact applicant did not register for GST acknowledged - Applicant's general lack of kind of activity expected of salesperson so extreme most unlikely employer would have accepted it without comment - Applicant mentioned several times interest in real estate based on desire to understand own real estate transaction, to help friend with a transaction, and an interest in improving English skills - Consistent with short term personal interests, not wider loyalty and commitment of employment relationship - Independent contractor - No jurisdiction - Real estate salesperson" |
| Result | Application dismissed ; Costs reserved |
| Statutes | ERA s6;ERA s6(2);ERA s6(3);ERA s6(4);Real Estate Agents Amendment Act 1992;Real Estate Agents Act 1976;Real Estate Agents Act 1976 s51A |
| Cases Cited | Challenge Realty Ltd v Commissioner of Inland Revenue [1990] 3 NZLR 42 ; (1990) 3 NZELC 97,533;Challenge Realty Limited v Commissioner of Inland Revenue [1990] 3 NZLR 58 ; (1990) 3 NZELC 97,917 |
| Number of Pages | 5 |
| PDF File Link: | aa 364_06.pdf [pdf 26 KB] |