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

• Date: 01 January 2024

A FEMINIST EXPLORATION OF THE

EMPLOYEE/CONTRACTOR BOUNDARY:

A CALL TO ACTION



Abstract

Everyone who wo rks in Aotearoa New Zealand i s entitled to respect , dignity,

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

employment leg islation, t he reality for workers w ho fall outside the l egal 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 drivi ng purp ose of employment legi slation in Aot earoa New Ze aland i s to

promote producti ve employment relation ships and en force mini mum sta ndards.1

The legislat ion has been focu sed on the relat ionship bet ween 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 ac cessing prot ections a nd enforcin g rights .2 Limit ing prote ctions

in this w ay is rooted i n an assum ption that a nyone 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 i n developing t he Health a nd Safet y at Work Act 2015, which set s

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

when work is being done .3 Furthermor e, there is a gr owing bo dy of evidence th at

many workers who cont ract wit h organ isations t o do work are not doin g well.

Due to the wid e range of ways of de scribin g working rel ationships t here 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 a nd risk t akers who set

themselves up i n business to c reate a ste ady income for them selves, worki ng how

and when they wa nt, or set out to g row and develop su stai nable enter prises th at

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.

Distinc t from entrepren eurs are worker s who appear t o be in busine ss for

themselves but h ave largely be en driven to it b ecause of ma rket condition s or

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

contractor s throug h deliberatel y exploitati ve practices.5 The pr imar y focus here

will be on c onstrained cont ractors.

This resea rch explores t he body of casel aw on the employee/contrac tor

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

relationa l approach, in formin g a call t o action of al l stakeholder s 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 esti mates 5 per c ent of workers ar e contract ors. Min istr y of Busines s, Innovat ion &

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.n z> at 3; and Minist ry of Business, Innovat ion and Employment | Hīkina Wha katutuk i,

above n 4, at 5.