| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 93/07 |
| Hearing date | 21 Mar 2007 |
| Determination date | 13 June 2007 |
| Member | G J Wood |
| Representation | M Baugen (in person) ; F Mackay |
| Location | Wanganui |
| Parties | Baugen v Gavin & Susan Ure t/a Affordable Plumbing & Gas Ltd |
| Summary | JURISDICTION - Whether employee or independent contractor - Applicant completing adult apprenticeship - Required to work under supervision or in employment of registered drainlayer - Respondents agreed to take on applicant on understanding he was sub-contractor - Apprenticeship training agreements treated as part of employment agreement only when nature of relationship between parties already one of employment - Applicant paid on invoice for hours worked on jobs - Aware paid more than standard apprenticeship rate as had to provide for own tax - Applicant later started own drain clearing business with respondents' support - Invoiced respondents separately when performed this work and also performed work on own account for other parties - Applicant advertised new business under different name from respondents - Clear at time relationship entered into parties had common intention that it be one of contractor and sub-contractor - In normal course of events Authority would accept apprenticeship, with associated training and supervision, most likely to involve employment relationship - However, nothing in industry training legislation dictated relationship be one of employment - Control test did not favour either party as while respondents had level of control over applicant's working day he was able to work on own account - Applicant not greatly integrated into respondents' business - Applicant had experience in business and tax requirements - Fundamental test pointed towards contracting relationship - Real nature of relationship not employment - Independent contractor - No jurisdiction - Drainlayer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | Plumbers, Gasfitters and Drainlayers Act 1976 |
| Cases Cited | Bryson v Three Foot Six Ltd [2005] NZSC 34 ; [2005] 1 ERNZ 372 ; [2005] 3 NZLR 721;Three Foot Six Ltd v Bryson [2004] 2 ERNZ 526 (CA) |
| Number of Pages | 8 |
| PDF File Link: | wa 93_07.pdf [pdf 31 KB] |