| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 82 |
| Hearing date | 28 Feb 2011 |
| Determination date | 03 March 2011 |
| Member | R Larmer |
| Representation | A Henry (in person), D Henry (in person) ; M Zhu |
| Location | Paihia |
| Parties | Henry and Anor v Millenium 1st Group Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Applicants claimed employed by respondent – Respondent claimed parties entered into commercial business arrangement where profits and risks shared between parties – Applicants responded to advertisement by respondent seeking manager for park (“the park”) – Parties entered into written agreement (“Agreement”) – Agreement did not expressly refer to status of parties’ relationship and did not use employment related terms – Applicants provided with housing unit on site at park – Applicants operated under terms of Agreement until resigned – Applicants claimed respondent withheld payment whenever dispute arose and that put financial pressure on then as had young children and no other source of income - Authority found manner in which parties’ relationship operated indicative of commercial business relationship not employment relationship – Found applicant paid bond for park’s assets – Found Agreement provided applicants should be registered for GST - Applicants’ chose when and how carried out work activities, provided carried out responsibilities under Agreement – Applicants had ability to profit from own endeavours with profits being split 70:30 in respondent’s favour - Applicants contributed to 30 percent of parks operating expenses – Applicants contributed 30 percent towards cost of maintenance and repairs - Applicants aware being paid below minimum wage but did not seek to be paid minimum wage – Applicants worked all public holidays that arose and did not seek entitlements for working them - Applicants did not see themselves as having annual leave rather viewed it as flexible arrangement where took leave when convenient - Authority found real nature of parties’ relationship not that of employment - No jurisdiction – Application dismissed |
| Result | Application dismissed ; No order for costs |
| Main Category | Jurisdiction |
| Statutes | ERA;ERA s6;ERA s6(2);ERA s6(3);ERA s161 |
| Number of Pages | 6 |
| PDF File Link: | 2011_NZERA_Auckland_82.pdf [pdf 23 KB] |