Latest legal cases and immigration updates

Four Uber drivers are ruled employees 

Early last year the Employment Court found that a driver for Uber, Mr Arachchige was an independent contractor instead of an employee. This year, in the recent judgment E tū Inc & Anor v Raiser Operations BV & Ors, after the 3-week-long case hearing, four Uber drivers in New Zealand won an employment case ruling they were employees of the global ridesharing provider and not contractors. As employees, the four drivers in this case were entitled to the rights and protection under New Zealand employment law, such as minimum wage, guaranteed hours, holiday pay, bereavement leaves, etc.  

Before this employment case: 

• In 2015, a California court ruled that Uber drivers were employees 
• In 2020, the French supreme court recognised the right of Uber drivers to be considered employees 
• In 2021, in the UK Supreme Court, Uber failed to defend its claim that its drivers were self-employed 
• In 2022, in Belgium Uber struck a deal with a Belgian union to start negotiations on the working conditions of its drivers. 

Although the ruling in New Zealand attaches only to the individual drivers, it may well have broader impact. First Union strategic project coordinator said it was a “landmark legal decision not just for Aotearoa New Zealand but also internationally.” 

An employment legal perspective:

From the Morrison Kent Employment Law Team

On 25 October 2022, Chief Judge Inglis decided four Uber drivers were not independent contractors as Uber claimed, but were instead employees.  Pivotal to the analysis was the focus on the real nature of the relationship and the evidence pointing to an employment relationship.

These “status claims” are intensely fact specific.  In short, the claim that Uber merely had a facilitator role between the drivers and the riders/eaters was not accepted. 

Instead, the Employment Court decided that the evidence pointed to Uber’s business model exerting strict control over drivers, and that the drivers worked for Uber’s business as dictated by Uber, rather than operating on their own account. The judgment relates only to the four drivers who brought the claim. However, the judgment could open the floodgates for other Uber drivers to raise the same status claim implications, along with others in the gig-economy. For the four drivers in question, we understand Uber may seek to appeal the Employment Court’s judgment. However, if they remain successful, and/or in the meantime, it will be open to them to pursue claims for unpaid holiday entitlements and any breaches of minimum wage, among other remedies.

Are you clear about public holiday entitlements? 

Zink v Board of Trustees of Southland Boys High School [2022] is a case law at Employment Court about whether the employee was entitled to be paid for public holidays that fell during the employer’s Christmas closedown period.   

The employee was a chef at the boarding hostel of a high school which sometimes hosted outside groups during holidays. The employee primarily worked during the school term and Term 1 and Term 3 holidays. He was paid public holiday entitlements for Christmas Day, Boxing Day, New Year’s Day and the day after New Year’s Day for many years. The employer ceased paying the entitlements for those days as they argued that they were not “otherwise working days” under s12 of the Holidays Act 2003.  

The decision made was in favour of the employees and the employer was required to pay him public holiday entitlements for those 4 days. Under s12 (3A) of the Act, if the public holiday falls during a closedown period, whether it was an otherwise working day must be ascertained as if the closedown period were not in effect. The employee usually worked on the days of the week on which the public holidays fell, therefore they were otherwise working days. 

As Christmas period is coming close, it is important that you thoroughly understand the public holiday entitlements to avoid legal breaches as above. 

If you need a refresh on leave entitlements for public holidays and alternative holidays, Employment New Zealand offers information on: 

• Public holidays  
• Annual closedowns 
• Minimum leave and holidays entitlements 
• Working out public holiday entitlements 

Immigration Updates 

Immigration New Zealand has announced the reopening of the long-paused Skilled Migrant Category (SMC), with the first selections of expressions of interest (EOIs) resuming on 9 November 2022 with 160 points. This will be the last selection of the 160-point requirement which then will rise to 180. This opened a pathway for people who don’t qualify for Residence Visa 2021. 

The median wage of NZD $29.66 an hour will be adopted into the immigration system on 27 February 2023. All wage thresholds indexed to the median wage, including the Accredited Employer Visa (AEWV) and residence visa categories will be updated.  

The Government announced new immigration measures for the hospitality and tourism sectors to navigate the recruitment stress for employers in these sectors. The qualification requirements for chefs to be hired under an AEWV has been removed and the tourism and hospitality median wage exception has been extended for another year. The lower wage threshold of $25 an hour holds until April 2023, then rises to $28.18 or 95% of the new median wage until April 2024.