The Employment Court in October ruled in favour of the drivers. Uber is now taking the matter to the Court of Appeal, where it’ll be heard next month.
Workplace Relations and Safety Minister Michael Wood acknowledged he was disappointed about the deferral, but stuck to the party line that the Government had to reprioritise what it was doing, and waiting for the outcome of the Uber case was sensible.
The decision is a letdown for the Council of Trade Unions (CTU), which worked with BusinessNZ and the Ministry of Business, Innovation and Employment to make recommendations to the Government in late 2021 on how to provide clarity on the contractor/employee distinction.
CTU secretary Melissa Ansell-Bridges said the irony of the matter being put on ice was that it would harm misclassified contractors struggling in the cost of living crisis.
Ansell-Bridges worried some contractors were effectively working for less than the minimum wage, all the while missing out on the flexibility and autonomy contracting should provide.
She believed there were forestry and construction workers, cleaners, adult entertainers, people in the gig economy and courier drivers who should be classed as employees.
“You can end up in the situation where it’s a lose-lose,” she said.
“You get none of the benefits of being an employee and none of being a contractor.”
Ansell-Bridges also feared contractors were left out of sector-wide collective bargaining enabled by Fair Pay Agreements.
What’s more, there was an incentive for employers to use more contractors to avoid meeting the conditions of a Fair Pay Agreement.
Dundas Street law firm associate Jack Rainbow saw the deferred consultation as a missed opportunity to clarify a grey part of the law.
He said there were several potential solutions, including redefining what it means to be an employee or creating a third category of worker between an employee and contractor.
Rainbow said the Government could even bolster the abilities of labour inspectors to ensure workers are correctly classified or ensure a legal determination on someone’s status can be applied to others in their sector.
As it stands, the Uber decision will technically only apply to the drivers who have taken legal action.
Rainbow therefore struggled to see how waiting for the case to go through the courts was going to affect government policy or lawmaking, as the decision would simply provide another piece of case law for judges to lean on in the future.
Buddle Findlay partner Sherridan Cook made the same point, saying uncertainty would remain following the Uber case’s conclusion.
He believed it was simply politically convenient for the Government to use the case as an excuse to pause a programme that could see it end up getting flak for adding costs to businesses.
Cook believed the Government could update the law to expand on the test currently used for determining whether someone is a contractor or employee.
He didn’t support creating a “halfway house” category.
While Cook was wary of the Government reacting to issues at the margins with sweeping legislative change, he saw merit in providing clarity.
His observation was that the Employment Court had recently tended to lean towards categorising people as employees rather than contractors.
He said the issue was a part of employment law where different courts tended to come to different conclusions.
