| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 208 |
| Hearing date | 18 Nov 2010 |
| Determination date | 17 May 2011 |
| Member | A Dumbleton |
| Representation | H White ; A Shirnack |
| Location | Auckland |
| Parties | May v Armourguard Security Ltd |
| Summary | JURISDICTION – Whether employee or independent contractor – Respondent terminated contract with applicant – Term of contract that could be terminated by three months written notice – Applicant claimed employment relationship existed under contract and respondent failed to acknowledge applicant’s due process rights – Applicant claimed employment relationship began when remuneration changed - Parties agreed applicant to obtain and maintain required licences and registration – Agreement included clause applicant could engage others to undertake work but respondent reserved right to disapprove employment of any employee – Applicant had lease agreement for vehicle provided by respondent but later used own vehicle – Applicant paid for vehicle’s expenses, including petrol and road user charges, but respondent controlled vehicle’s appearance and security fittings and equipment – Parties agreed at commencement of agreement applicant employed as independent contractor – Applicant setup company at beginning of contract - Required licences and GST invoices in company name, company owned applicant’s vehicle, company’s bookkeeping treated applicant as company employee and other drivers employed by company – Authority noted applicant claimed had two employers at same time, applicant’s company and respondent – Authority found change to agreement was not substitution but variation to earlier agreement – Found remuneration did not change nature of relationship between parties – Noted agreement required applicant to perform services regardless of strike or other dispute – Noted agreement referred to partnership providing services to respondent – Found partnership could not be employee – Found respondent exercised high degree of control under agreement – Noted although applicant’s remuneration flat rate, could improve financial returns by running vehicle economically and changing rate of those employed by applicant – Noted applicant assigned or sub-contracted work to others and paid own tax allowing applicant to claim depreciation and take advantage of tax rates – Found relevant applicant did not apply for annual leave or take holiday when relief driver provided services - Found, based on key role played by applicant’s company, applicant self-employed or in business on own account and not employee of respondent – No employment relationship - Security Vehicle Service Contractor |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6;Goods and Services Act 1985;Private Investigators and Security Guards Act 1974;Transport Services Licensing Act 1989 |
| Cases Cited | Brunton v Garden City Helicopters Ltd [2011] NZEMPC 29;Bryson v Three Foot Six Ltd [2005] 3 NZLR 721;Poulter v Antipodean Growers Ltd [2010] NZEMPC 77 |
| Number of Pages | 13 |
| PDF File Link: | 2011_NZERA_Auckland_208.pdf [pdf 38 KB] |