Cases of interest: May 2023

Rasier Operations BV v E Tū Inc [2023] NZCA 216

Court of Appeal – Leave to appeal – Question of law – Meaning of "employee" – Uber drivers

At issue was whether the Court of Appeal should give Rasier Operations BV leave to appeal an Employment Court decision, which found that four Uber drivers were employees (see E Tū Inc v Rasier Operations BV [2022] NZEmpC 192(external link)). 

The Court of Appeal allowed the appeal on the following questions of law (see paragraph 14):

(a) Did the Employment Court err by misdirecting itself on the application of section 6 (the meaning of “employee”) of the Employment Relations Act 2000?

(b) Did the Employment Court err by misapplying the test in section 6, or in the alternative, was the Court’s conclusion so insupportable as to amount to an error of law?

(c) Did the Employment Court err in finding that joint employment may arise in New Zealand simply as a result of a number of entities being sufficiently connected and exercising common control over an employee?

Rasier Operations BV v E Tū Inc [2023] NZCA 216(external link)

Reunited Employees Association Inc v NELMAC Ltd [2023] NZEmpC 74

Employment Court – Fixing terms of a collective employment agreement – Grounds for the Employment Relations Authority to fix terms – Jurisdiction of the Employment Court to fix terms

An issue was whether the Employment Court (the Court) could overturn a determination of the Employment Relations Authority (the Authority) that fixed terms of a collective employment agreement; and if so, whether the Court could then fix the terms of the collective agreement itself.

The employer and the relevant union were involved in collective bargaining. After failed attempts to conclude bargaining, the employer went to the Authority to fix the terms of the collective agreement under the Employment Relations Act 2000, section 50J(3)(c)(external link). The Authority agreed to fix the terms of the agreement. 

The union sought to overturn the determination fixing the terms of the collective agreement. The union sought to get the Court to fix the terms instead.

The Court found that the Authority had grounds to fix the terms of a collective agreement under section 50J(3)(c). The Court took into account that:

• The union had behaved in a way that was a sufficient breach of faith under 50J(3)(a)(ii) (see paragraphs 83, 84). 
• "No obvious means to progress bargaining was apparent" (see paragraph 85).
• "There were no other realistic options for the Authority to consider" (see paragraph 86).
• Section 50J(3)(c) does not require that all and any potential remedies have been tried and/or exhausted; the emphasis is on effective remedies (see paragraph 87).
• Getting the Authority to fix the terms was the only effective remedy available to the employer (see paragraph 88).

The Court observed that it had no jurisdiction to fix the terms of a collective agreement itself; it could not set aside a collective agreement fixed by the Authority and replace it with something else  (see paragraphs 95, 96).

Reunited Employees Association Inc v NELMAC Ltd [2023] NZEmpC 74(external link)

Collaine v Kiril Ltd [2023] NZERA 182

Employment Relations Authority – Employment status – Building apprentice

At issue was whether a building apprentice was an employee or a contractor.

A building apprentice claimed that he was an employee and that he was unjustifiably dismissed. The alleged employer claimed the apprentice was a contractor. In this proceeding the Authority determined only whether the building apprentice was an employee or a contractor. 

The Authority found the building apprentice was an employee. In coming to that decision the Authority took into account the following:

• While it was clear the respondent intended the applicant to be a contractor, on the evidence the applicant did not share that intention (see paragraphs 17–20).
• The "essential nature of an apprenticeship is that the apprentice learns under the supervision or control of the other party… This strongly indicates an employment relationship" (see paragraph 23).
• The evidence showed the apprentice was integrated into the business: he worked regular hours; the apprenticeship programme required him to work for only one employer; there was no evidence he was working separately or independently (see paragraphs 24 to 26). 
• Apart from owning a small number of hand tools, there was no evidence the apprentice was in business on his own account (see paragraphs 27, 28).
• The Education and Training Act 2020(external link) and the Code of Good Practice for New Zealand Apprenticeships(external link) are both clear that "an apprenticeship arrangement under an apprenticeship training agreement must occur in the context of an employment relationship" (see paragraphs  31 to 36).

Collaine v Kiril Ltd [2023] NZERA 182(external link)