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Court action: When is a worker a contractor versus an employee?

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Fuseworks Media
Fuseworks Media

FIRST Union plans to seek a determination in the Employment Court as to whether courier drivers are employees and therefore covered by employment legislation. The decision to do so follows a two-week long exposure by John Campbell on Radio New Zealand’s Checkpoint of the appalling wages and conditions that many courier drivers work under. The Union plans to overturn the precedent-setting case of TNT v Cunningham and seek a judgement based on new facts and under a new (Employment Relations Act) law from when an earlier decision was made.

Transport, Logistics and Manufacturing Division Secretary Jared Abbott says it was the views of former Chief Employment Judge Colgan on Checkpoint last week that convinced the Union that testing the issue of the employment status of courier drivers (in the Employment Court) was not only the right thing to do, but could have a good chance of success.

"While the legal process may be lengthy, for the sake of these workers it needs to be done."

Mr Abbott says the Union has been working on the issue for a number of years, negotiating good terms and conditions with several courier companies, but often companies hide behind a contractual relationship rather than an employment relationship despite the drivers being treated as employees.

"Independent contractors, amongst other things, are supposed to be where a person provides a service to multiple companies. But what we are seeing are companies asking courier drivers to be contractors only for them, and to take on responsibility that actually belongs with the company such as insuring the company vehicle and wrapping it with branding, and then paying them net less than the minimum wage for their trouble. We need to stop, and roll back the attempts by some employers to load all employment risks onto their workers."

He says despite the Union lobbying parliament and making submissions on private members’ bills that could regularise workers (such as courier drivers) as employees, none of the bills made it through parliament.

"It’s very frustrating that when we highlight an issue with the law that is allowing the abuse of the wellbeing of workers, that it’s completely ignored."

Mr Abbott says in response to the apathy the Union helped establish an owner-driver advocacy service called Pro-Drive that has had some great wins using commercial law, however it has become obvious that the Union needs to challenge the situation through employment law.

"These independent contractors (courier drivers) are in fact employees so we believe we can reach the same successes in case law through employment court."

He adds a thank you to John Campbell and RNZ for exposing the case and the issues so many courier drivers face.

"The issue is not just one for courier drivers but one for other owner-drivers and independent contractors in many other trades. It is similar to the pernicious labour-hire system that FIRST Union is campaigning against - the latest action being a picket outside a labour hire company in Auckland last week."

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