| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 34 |
| Hearing date | 1 Dec 2010 |
| Determination date | 24 January 2011 |
| Member | E Robinson |
| Representation | B Henry ; C Toogood QC, G Mayes |
| Location | Auckland |
| Parties | Casares v AAV New Zealand (t/a Oktober) |
| Summary | JURISDICTION – Whether employee or independent contractor - Applicant claimed unjustifiably disadvantaged by respondent’s failure to pay commission – Respondent claimed applicant independent contractor and no commission owed - Applicant involved in New Zealand film and television industry for over eight years prior to involvement with respondent – Applicant shareholder and director of animation studio company (“L”) - Parties entered into Freelance Agreement (“FA”) – FA specified applicant “freelancer” and relationship not that of employment – Applicant claimed “industry practice [wa]s to call the staff a neutral word “freelance contractor”, and that “The ‘WETA’ case was notorious in the industry.” - Authority found was significant applicant aware of Bryson v Three Foot Six Ltd – Authority accepted applicant’s statement that case notorious within industry - Authority found significant applicant experienced in industry, involved in L as shareholder and director, engaged people to work for L, and had advice from accountant before entering FA - Authority found applicant made informed decision about contractual nature of relationship with respondent – Found common intention of parties that relationship was principal and independent contractor - Applicant claimed position integral to respondent – Respondent claimed position was new initiative and applicant engaged to bring in new business – Applicant claimed later instructed to take on PR and marketing role which was fundamental to respondent and could not be contracted out – Respondent claimed applicant not meeting sales targets and so instructed to perform another role – Respondent claimed PR and marketing work regularly contracted out in industry and respondent’s overall PR and marketing handled by contractor based in Australia - Authority found no evidence applicant’s position integral to respondent - Applicant claimed expected to work fixed hours and give explanation if late – Respondent claimed applicant given considerable autonomy and little supervision or close direction – Authority found no evidence applicant subject to respondent’s control - Found L invoiced respondent and money paid into L’s bank account – Found FA did not preclude applicant undertaking work for other companies – Found on at least one occasion applicant carried out client work for benefit of L without interference or objection from respondent - Found sufficient evidence to indicate applicant in business on own account - Applicant independent contractor - Account Manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;ERA s65(2)(iii);ERA s65(2)(iv);ERA s65(2)(vii);ERA s103(1)(b);ERA s161(2) |
| Cases Cited | Bryson v Three Foot Six Ltd and Ors [2005] ERNZ 372 ; [2005] 3 NZLR 721 |
| Number of Pages | 13 |
| PDF File Link: | 2011_NZERA_Auckland_34.pdf [pdf 47 KB] |