September newsletter

This month we have highlighted the recent Court Appeal determination that four Uber drivers are in fact employees not contractors. We are also looking at the Institute of Directors guidelines on the responsibilities of Directors under health and safety legislation, and privacy guidelines from the Office of the Privacy Commission.

Court of Appeal case – Uber vs ETU and First Union

The appeal was in respect of the findings of the Employment Court in 2022 where 4 Uber drivers were found to be employees. The Court of Appeal found that the Employment Court did get it wrong, but then arrived at the same result by different means.

The full findings of the case are at this link Case studies (healthypractice.co.nz) but to summarise findings, the Court of Appeal looked at the common law test, described in Bryson, of control, integration and fundamental tests.

• It was clear that drivers were not in business on their own account. When drivers are logged into the Uber driver app, they have no ability to establish business goodwill, or to influence the quantity or quality of work they receive and the revenue from that work.
• Drivers don’t have the ability with Uber for preference in relation to access ride requests, information about rides or supplementary payments.

It was because of these reasons the Court of Appeal held that drivers cannot be said to be carrying out transport service businesses on their own account when they are logged onto Uber driver app.

Implications

While this finding only applies to four Uber drivers, it is likely to have wide-reaching impact on all Uber drivers in NZ and other contractors.

This judgement will mean that many drivers may now be in a position to seek declarations that they are employees and be entitled to minimum entitlements (such as annual leave, sick leave, and the ability to raise a personal grievance).  There are some indications that Uber may challenge this decision to the Supreme Court, so whether this is short-lived will be interesting to see.

For contractors, it has again established the correct test under section 6 of the Employment Relations Act, however it has come at a time where the coalition government is actively reviewing whether or not to amend the law around employee’s vs contractors.  In the 2023 election, the Act party campaigned to amend section 6 to explicitly prevent contractors from challenging their contractor status.

Director obligations under the Health and Safety at Work Act 2015.

Under the Health and Safety at Work Act 2015, Company Directors have specific obligations and responsibilities. The Institute of Directors have updated their guidelines, and you can download the document from this link Health and Safety: A good practice guide | IoD NZ

As part of the governance role – directors and officers need to think about:

• What is happening in your organisation?
• What are your critical risks?
• What key controls are in place to manage those risks?
• Are you confident those controls are working?
• What do you base your confidence on?

To do this well requires a thoughtful, open, and positive approach asking good questions, supported by good systems.

Doing Privacy Well – Poupou Matatapu

 The Office of the Privacy Commissioner has developed a new resource Poupou Matatapu – Doing Privacy Well. There are 10 sections to the guidelines that will step you through the process to ensure your practice is doing all it can to comply with the legal requirements.

You can read the detail here Office of the Privacy Commissioner | Poupou Matatapu: doing privacy well