| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 176/07 |
| Hearing date | 18 May 2007 |
| Determination date | 14 June 2007 |
| Member | M Urlich |
| Representation | B Edwards ; C Chilwell |
| Location | Auckland |
| Parties | Elwin v Barfoot & Thompson Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Parties' written contract expressed as contractor arrangement under Real Estate Agents Act 1976 (REAA") - Contract referred to applicant as branch manager although never held position - Applicant's primary submission was contract illegal and should be declared of no effect - Though applicant not branch manager, fact contract described him as such did not constitute offence under REAA - No evidence any illegality arose from performance of contract - Contract not illegal - Applicant submitted not salesperson for purposes of REAA - However, had previously described his role as including property letting - Applicant directly involved in letting and leasing activities - Sales person - Deeming requirements of REAA fulfilled - Applicant employed staff and set own hours - Tax and holiday arrangements consistent with contractor relationship - Parties intention clear - Degree of control and integration, but necessary to meet statutory requirements of REAA - Independent contractor - No jurisdiction" |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;ERA s6(4);Illegal Contracts Act 1970;Illegal Contracts Act 1970 s3;Real Estate Agents Act 1976;Real Estate Agents Act 1976 s42;Real Estate Agents Act 1976 s51A;Real Estate Agents Act 1976 s54(2);Real Estate Agents Act 1976 s54(5) |
| Cases Cited | Bank voor Handel en Scheepvaart NV v Slatford (No 2) [1953] 1 QB 248 ; [1952] 2 All ER 956 ; [1952] 2 TLR 861;Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 ; [1969] 2 WLR 1 ; [1968] 3 All ER 732;Raine Blackadder Ltd t/a Ray White Commercial v Noonan [2006] ERNZ 122 |
| Number of Pages | 9 |
| PDF File Link: | aa 176_07.pdf [pdf 32 KB] |