Dependent Contractors - August 2018

The Government committed to introducing statutory support and legal rights for dependent contractors who are effectively workers under the control of an employer but who do not receive the legal protections provided to employees. 

While as yet there is no draft legislation, it is possible such contractors would be able to bargain collectively, perhaps not with the same set of rules as employees but something close to it. Other employee entitlements such as annual holidays and sick leave could be extended to such contractors. 

To lend support to this policy, FIRST union says it will seek a determination in the Employment Court as to whether courier drivers are employees and therefore covered by employment legislation.  The Union plans to overturn the precedent-setting 1993 case of TNT v Cunningham and seek a judgement based on new facts under later legislation (Employment Relations Act rather than the Employment Contracts Act).

A successful result for the Union would have implications for many other business sectors.  There have already been a number of cases where the ERA and Employment Court have determined that workers purported to be contractors, were in fact employees - eg Prasad v LSG Skychefs and  Dunedin's Southern Taxis.  While these cases were decided on their particular facts, the warning signs are there.  

The Government also committed to repeal the "Hobbit" legislation which currently prevents film and TV workers from bargaining collectively. Yet another working group is considering this issue.