A Feminist Exploration of the Employee/Contractor Boundary: A Call to Action

• Author: Lynne Coker
• Position: Senior Lecturer, Ara Institute of Canterbury, Christchurch, New Zealand
• Pages: 47-66

A FEMINIST EXPLORATION OF THE

EMPLOYEE/CONTRACTOR BOUNDARY:

A CALL TO ACTION



Abstract

Everyone who works in Aotearoa New Zealand is entitled to respect, dignity,

fair conditions, safet y an d rea sonable reward. While some workers are protected by

employment legislation, the reality for workers who fall outside the legal status of

“employee” is very dierent. Genera lly known as “contractors”, these workers face very

mixed work experien ces.

e Courts have cons idered a steady stream of applications over the past two dec ades

resulting in some con tractors being reclassied as “employees”, a ble to pursu e remedies

for harms suered. Various governments have known about the growing issue and failed

to act. Advocacy groups h ave had mixed res ults pursuing imp roved conditions for those

they represent. is researc h rev iews the law on t he e mployee/contractor boundary,

along with caselaw , MBIE’s Consultation on Better Protection for Contract ors and the

recommendations of the Tripartite Working Group on Better Protection for Contractors,

through a feminist lens.  e research will s how that there a re many voices mi ssing from

the d iscussions that have been had to da te and a general lack of understanding of the

harms being exper ienced by some contractors. Acti ve listening and a willingnes s t o

consider new w ays forward to ach ieve a mana enhancing good working l ife for everyo ne

is urgently needed .

I. Introduction

The driving purpose of employment legislation in Aotearoa New Zealand is to

promote productive employment relationships and enforce minimum standards.1

The legislation has been focused on the relationship between employers and

employees and therefore t he qualif ying is sue of “who is an employee” is t he

1 Employment R elations Act 2000, s 3; Hol idays Act 2003, s 3; Pare ntal Leave and Employ ment

Protect ion Act 1987, s 1A ; Minimum Wag es Act 1983; and Wage P rotection Act 1 983.

47

* Senior Lect urer, Ara Ins titute of Ca nterbury, Ch ristchur ch, New Zeala nd.

48[Vol 31, 2024]

gateway to accessing protections and enforcing rights.2 Limiting protections

in this way is rooted in an assumption that anyone outside of the “employer/

employee” relat ionship wi ll be t reated fa irly by ot hers and, in any event, can fend

for themselves wi thout government or judicia l interference. This sa me perspective

was not taken in developing the Health and Safety at Work Act 2015, which sets

out to protect t he health and safety of all workers a nd others who might be at risk

when work is being done.3 Furthermore, there is a growing body of evidence that

many workers who contract with organisations to do work are not doing well.

Due to the wide range of ways of describing working relationships there is no

deniti ve data available to identify how many people are work ing as contract ors

currently in Aotearoa.4 Workers can be innovators and risk takers who set

themselves up in business to create a steady income for themselves, working how

and when they want, or set out to grow and develop sustainable enterprises that

employ others (“entrepreneur s”). Som e of t hese entrepreneurs may properly be

called “contrac tors” a s the y int eract w ith hiring organ isations to take on work .

These workers are not t he focus of this resea rch.

Distinct from entrepreneurs are workers who appear to be in business for

themselves but have largely been driven to it because of market conditions or

other fac tors (“constra ined contract ors”). Some workers are also forced into being

contractors through deliberately exploitative practices.5 The primary focus here

will be on c onstrained cont ractors.

This research explores the body of caselaw on the employee/contractor

boundar y that has evolved over the pa st 20 years. It ana lyses the recommendation s

to government of t he Tripar tite Working Gr oup on Better Prot ection for Contrac tors

(TWG Recom mendations) and the con sultation und ertaken by MBIE w hich informed

it (MBIE’s consu ltation).6 Voices of workers are c onsidered throug h media report ing,

MBIE’s consul tation, caselaw, and a va riety of multi- disciplinar y articles.

Key issues ar e analy sed throu gh a femini st lens that com bines Iri s Marion Young’s

feminis t approach to justice through politic al res ponsibility and a m ana w āhine

relational approach, informing a call to action of all stakeholders in developing a

2 Judge Ing lis rst used “gateway ” in this context in L eota v Parcel Expre ss Ltd [2020] NZ EmpC 61

at [2].

3 Health a nd Safety at Work Ac t 2015, s 3.

4 MBIE estimates 5 per cent of workers are contractors. Ministry of Business, Innovation &

Employment | Hīki na Wh akatutu ki Better protections for contractors: Discussion document for

public feedback (November 2019) at 15.

5 These worker s are typic ally consider ed “misclas sied” and shou ld be “employees”.

6 The Tripa rtit e Working Gr oup on Bett er Protec tion for Contr actors wa s made up of Gover nment,

Business N Z and NZCTU represent atives. Tripa rtite Working Gr oup on Better Prote ctions for

Contractors Rep ort to the Minister for Workplace Relations and Safety (22 December 2021) <w ww.

mbie.govt.nz> at 3; and Minist ry of Business, Innovat ion and Employment | Hīkina Wha katutuk i,

above n 4, at 5.