Beyond the binary: Time for a broader approach to employment status

Abstract

When the National, ACT New Zealand and New Zealand First coalition government came to power they inherited a series of policy and legislative challenges regarding the status and protections for workers labelled as contractors. This involves defining which workers are employees, with the rights and protections that involves, and the potential that some workers may be misclassified as contractors. Alongside this are workers in a ‘grey area’ between contractor and employee classifications. These people are not truly self-employed in the sense of being independent entrepreneurs, but instead are constrained in a variety of ways, including being economically dependent on one employer or constrained in the way their contracts function.

This article critically evaluates the government’s proposed amendment to the test of employment status in s6 of the Employment Relations Act 2000 (ERA) and argues that the amendment is unsatisfactory on several grounds.  While it is important that workers are not exploited and are able to live decent lives, there are industries which are not configured in a way which easily lends itself to the imposition of standard employment relationships. There are also workers who do not want to work under the traditional employment relations model. The article concludes that a more nuanced approach – beyond the current employee versus independent contractor binary – is needed. It highlights the potential of commercial law to offer improved protections for workers in contracting arrangements as a promising avenue for future development.