| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 120/08 |
| Hearing date | 10 Jun 2008 - 11 Jun 2008 (2 days) |
| Determination date | 17 September 2008 |
| Member | G J Wood |
| Representation | M Gould ; M Quigg, T Sissons |
| Location | Wellington |
| Parties | Hughes and Anor v Upper Hutt Cosmopolitan Club Inc. |
| Other Parties | Hughes |
| Summary | JURISDICTION – First issue whether Part 6A Employment Relations Act 2000 (“ERA”) protections extend beyond vulnerable employees to owner/operators – Second issue whether applicants were employees, or whether employment relationship was sham and/or applicants in business on own account – Respondent had catering contract with Hughes Catering Limited (“HCL”), of which applicants were sole shareholders and directors – Applicants also employees of HCL – Respondent terminated contract with HCL – Applicants claimed Part 6A ERA applied, providing continuity of employment to employees providing food catering services affected by restructuring where their work becomes responsibility of new employer – Respondent argued that must be “vulnerable employees” to qualify under Schedule 1A ERA – Authority found Parliament intended process to cover certain categories of work, not categories of employees – Authority found majority of applicants’ duties constituted food catering services - Also found not excluded from coverage by Schedule just because other duties included company related work – Respondent argued did not consider applicants to be employees of HCL - Authority found relationship between HCL and applicants not that of employer and employee – Arrangement entered into between applicants and their company not a sham – However applicants in business on own account, and not employees – Applicants not employees for purposes of Part 6A ERA – No jurisdiction |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA Part 6A;ERA s6(3)(b);ERA s69A;ERA s69F;ERA Schedule 1A |
| Cases Cited | Bryson v Three Foot Six Ltd and Ors (No 2) [2005] 1 ERNZ 372 (SC);Hauxwell & Hauxwell v Secretary of State for Trade & Industry EAT/386/01;Lee v Lee's Air Farming Ltd [1961] NZLR 325;Secretary of State for Trade & Industry v Bottrill EATRF 98/0132303;Smith v Practical Plastics Ltd [1998] 1 ERNZ 323 |
| Number of Pages | 11 |
| PDF File Link: | wa 120_08.pdf [pdf 49 KB] |