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When Workplace Conflict Hits

Business Law, Employment Law, Human Resources, Legal Guidance, Small Business Advice, Workplace Regulation
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Lately, Sally had noticed that Emilio seemed a little distant and distracted. She asked him what was troubling him.

“Mi vida, I am so stressed. Work is so busy. We have orders to fill and my sales manager is having an argument with my chief mechanic!”

Emilio explained that his agritech business was in its peak season and orders were pouring in, but this issue meant the sales team and mechanical team could not communicate. That led to serious delays, angry customers and frustrated suppliers.

Sally suggested that Emilio might need some employment advice about New Zealand employment law.

 

Emilio called his lawyer the next morning. He learned that employers had obligations to act in good faith. He did not realise that employers could raise concerns with employees about their performance or workplace conduct, investigate the facts, and make decisions – provided these were decisions a fair and reasonable employer could make in the circumstances.

 

With guidance from his lawyer, Emilio raised the concerns with the sales manager and the chief mechanic. Quickly, the argument cooled off. Emilio met with each of the employees, and asked them for their side of events. He learned that the manager and mechanic were old friends that had different opinions about the best kind of coffee for the tearoom. The manager had asked office staff to get his favourite Kopi Luwak coffee, and had made a cup for the mechanic, telling him it was something different. The mechanic learned about the prank and was extremely upset.

 

Concluding the investigation, Emilio decided that he would give a written warning to the manager about the prank due to the effect it had on the mechanic, and gave a verbal warning to both employees about allowing the argument to affect the workplace. Since Emilio had caught it early and gave the employees plenty of opportunity to participate, they accepted the outcome and made amends, although the mechanic now brings a thermos to work.

 

Emilio went on to have his best sales season yet, meaning he could afford a holiday to Spain to take Sally to visit his abuela.

 

Jadin Hooper

Business briefs

Commercial Law, Consumer Protection, Employment Law, Privacy Law, Regulatory Compliance, Trade & Investment
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Commerce Commission – unconscionable conduct

For the first time, the Commerce Commission has filed proceedings under the prohibition on unconscionable conduct in the Fair Trading Act 1986. This development suggests that active enforcement in this area is underway.

Unconscionable conduct is business behaviour that falls well below accepted New Zealand standards and goes beyond ordinary commercial practice to conduct that is clearly unfair and unreasonable. This is one of several areas the Commission has identified as an enforcement priority.

The Commission has taken action against Brand Developers Limited (trading as The TV Shop) and Tech Vault Enterprises Limited (trading as HouseSmile), alleging both used high-pressure sales tactics on vulnerable consumers, including people with cognitive impairments or serious illnesses. The Commission considers this conduct a clear departure from acceptable business standards.

Businesses found in breach of the prohibition risk a fine of up to $600,000 and individuals may be liable for a fine of up to $200,000. Courts may also order businesses to compensate affected customers.

This action serves as a timely reminder to all businesses to ensure their sales practices are up to scratch, especially when they are dealing with vulnerable customers.

 

Overseas Investment Act 2005 reform

The Overseas Investment (National Interest Test and Other Matters) Amendment Act came into force on 6 March 2026, delivering a significant overhaul of New Zealand’s foreign investment framework.

The reforms are designed to make it easier and faster for overseas investors to invest in New Zealand, while ensuring the government retains the ability to scrutinise transactions that could affect New Zealand’s national interests.

Part of the reform involved streamlining the overseas investment application process. Previously, overseas investment applications had to satisfy several separate tests. A single national interest test now applies to transactions involving significant business assets and sensitive land, other than farmland, fishing quota and residential land (for which the existing consent pathways remain). Applications are assessed through a three-stage process:

  1. Risk identification: The Overseas Investment Office (OIO) assesses the application for any national interest concerns. If none are identified, consent is granted. The statutory timeframe for decisions under this stage is up to 15 working days.
  2. Risk assessment: If concerns are identified, a more detailed assessment follows. Consent can still be granted at this stage, with or without conditions. The statutory timeframe for review under this stage increases by 55 working days.
  3. Ministerial decision: In cases where the transaction may be contrary to New Zealand’s national interest, the matter may be referred to the Minister of Finance who can decline consent. There is no fixed statutory timeframe for a ministerial decision.

For business owners looking to attract overseas investment or to sell to a foreign buyer, this framework should make the consent process faster and more straightforward. That said, the regime still applies and any agreement must be specifically conditional on OIO consent being obtained before the deal proceeds.

 

New obligations for businesses collecting personal information from third parties

On 1 May 2026, Information Privacy Principle 3A (IPP3A) came into effect, expanding the notification requirement under the Privacy Act 2020 to cover indirect collection of personal information.

Previously, businesses had no obligation to notify individuals when collecting their personal information from a third party. IPP3A has changed that.

What your business must disclose: From now on, when your business collects personal information indirectly, you must take reasonable steps, as soon as is reasonably practicable, to make the individual aware of the:

  • Fact that their information has been collected
  • Purpose of the collection
  • Intended recipients of the information
  • Name and address of the agency, or agencies, collecting and holding the information
  • If applicable, which law authorises or requires the collection, and
  • Rights of the individual to access and correct their information.

Exceptions: IPP3A does not require notification in all circumstances. Exceptions include, but are not limited to, where:

  • The individual has already been notified
  • The information is publicly available
  • Compliance is not reasonably practicable, and/or
  • It is necessary for law enforcement or court proceedings.

Please note the above is to be treated as a guide rather than an exhaustive list. We recommend seeking tailored legal advice before relying on any exception.

Next steps: If you haven’t already, you may want to consider building notification into your existing policies and this should be communicated clearly to individuals. The Office of the Privacy Commissioner has released guidance on IPP3A which provides a helpful starting point for understanding your obligations. Non-compliance may result in a complaint to the Privacy Commissioner, which may lead to a formal investigation and have potentially significant consequences for your business, so it is important you take steps now to ensure your processes are up to date.

For more detailed information about IPP3A together with examples of how it works, click here. If you have any questions about how IPP3A applies specifically to your organisation, please feel free to contact us.

 

Employment Relations Amendment Act 2026 – key changes

The Employment Relations Amendment Act 2026 came into force on 21 February 2026, introducing some significant changes to the New Zealand employment law framework. Some of the key changes of which businesses should be aware are listed below.

Independent contractors: The Act introduces a new gateway test to determine whether a worker is an employee or a contractor. To qualify as a ‘specified contractor,’ five criteria must be met that cover matters such as having a written agreement, freedom to work for others, flexible hours, the ability to decline work and having had a reasonable opportunity to seek legal advice. There is more information about the test here.

Personal grievances: Where an employee’s conduct amounts to serious misconduct and has contributed to the situation giving rise to the personal grievance, no remedies will be awarded. Where the conduct falls short of serious misconduct but still contributed to the grievance, remedies may be reduced by up to 100%.

High-income earner: Employees earning $200,000+ per year in total remuneration will no longer be able to bring a personal grievance or file proceedings in relation to an unjustified dismissal. A 12-month transitional protection applies to those already in roles when the legislation came into force.

Collective agreements: The requirement to apply collective agreement terms to new employees during their first 30 days, and the automatic sharing of new employee information with the union, will no longer apply.

Justification test: The section 103A justification test has been amended to take into account whether an employee obstructed the employer’s process. Significant procedural failures will no longer render a dismissal unjustifiable where the employee was not actually treated unfairly.

If you would like to discuss any aspect of how this new legislation affects your business, please don’t hesitate to contact us.

 

 

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

 

Health and Safety at Work Amendment Bill

Employment Law, Government & Policy, Health and Safety, Regulatory Compliance, Risk Management, Workplace Regulation
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Expected to be enacted in the spring

The Health and Safety at Work Amendment Bill was introduced into Parliament on 8 February 2026 and passed its first reading on 12 February 2026. It is currently before the Education and Workforce Select Committee. Submissions closed at the end of March and the committee is scheduled to report back to Parliament by 12 June 2026. It is anticipated that the Bill will be passed before the election (early November).

If enacted, the Bill will represent the most significant reform of health and safety law in New Zealand since the Health and Safety at Work Act (HSWA) was passed in 2015.

 

Purpose of Bill

Workplace Relations and Safety Minister, the Hon Brooke van Velden, said that the Bill is intended to reduce compliance obligations, focus on preventing serious harm and clarify businesses’ obligations under the HSWA.[1] The key proposed changes in the Bill are:

  • Increased focus on preventing serious harm
  • Reducing compliance obligations for small businesses
  • Clarification of the health and safety obligations of landowners, and
  • Clarification of the relationship between health and safety legislation, and other legal requirements.

 

Introducing ‘critical risk’

The Bill introduces a new defined term of ‘critical risk.’ Small businesses must focus on avoiding critical risks. All other businesses must manage all risks but are required to ‘prioritise’ critical risks.

The Bill defines a ‘critical risk’ as a risk associated with one of the matters specified in Schedule 1A of the Bill; this lists a number of specific high-risk activities such as working with asbestos and other hazardous substances. A critical risk also includes any hazard that is likely to result in death, a notifiable injury or illness, a notifiable incident or an occupational disease listed in Schedule 2 of the Accident Compensation Act 2001.

Identifying what the critical risks are for a particular business is likely to be one of the more challenging aspects of the new legislation.

 

The impact on small to medium-sized businesses

The most significant change contained in the Bill is the narrowing of the duties of small to medium-sized businesses, referred to as ‘small PCBUs,’ to risks that are defined as critical risks under the Act.

This does not mean that small businesses have no obligations in relation to other risks. They are still required to provide adequate facilities to ensure the safety of their employees.

A small PCBU will be defined as a business with fewer than 20 employees. Businesses that have a fluctuating workforce will qualify provided that they have fewer than 20 employees for at least nine months of the year. This change is likely to have a significant impact on the compliance obligations of businesses in New Zealand, given that approximately 97% of businesses would qualify as a small PCBU.[1]

 

Obligations of landowners and recreational activities

Potential exposure to prosecution under health and safety legislation in New Zealand has long been a concern for landowners who wish to make their land available for recreational activities.

In the past, this has been a particular concern for rural landowners who have often avoided providing access to their land due to such concerns. It has also discouraged public landowners, such as schools and councils, from allowing their land to be used for recreational activities.

The potential liability of landowners was recently highlighted by the prosecution of the owner of Whakaari/White Island following the eruption in 2019, which resulted in the deaths of 22 people. The landowner was initially convicted in the District Court under the HSWA, despite not directly operating the tours to the island.[2] The High Court overturned this conviction on appeal.[3]

The passing of the Bill would mean that landowners would not generally owe health and safety obligations to people using their land for recreational activities.

 

The Health and Safety at Work Act and other legislation

The Bill would clarify the relationship between general health and safety legislation, and other legislation that applies to specific industries such as the aviation and maritime sectors.

In the past, there has been confusion as to whether or not businesses in industries covered by specific legislation have additional duties under the HSWA. The Bill clarifies that compliance with industry-specific legislation or approved industry codes of practice is also compliance with the HSWA, so there are no additional obligations.

The Bill also states that the owners of earthquake-prone buildings do not need to take additional steps under the HSWA, provided that they comply with the requirements of the Building Act 2004.

The Bill is intended to reduce the compliance work that is required by businesses under current health and safety legislation, which has become an expensive ’tick-box’ exercise for many. However, it will still be important for small businesses to identify the ‘critical risks’ in their businesses and to take steps to mitigate them.

If you have any concerns about the impact that this proposed legislation may have on your business, please don’t hesitate to contact us.

 

[1] New Zealand business demography statistics at February 2025, Statistics New Zealand.

[2] WorkSafe New Zealand v Whakaari Management Ltd [2023] NZDC 4149.

[3] Whakaari Management Ltd v WorkSafe New Zealand [2025] NZHC 288.

 

 

DISCLAIMER: All the information published in Commerical eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commerical eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

Over the fence

Employment Law, Government & Policy, Rural & Agricultural Law, Succession Planning, Trusts & Asset Planning, Wills & Estates
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Biosecurity overhaul

In July 2025, the Ministry of Primary Industries released its proposed ‘Biosecurity System Action Plan.’ It is intended to guide new legislation to amend the Biosecurity Act 1993, and to overhaul current biosecurity regimes to improve process, obligations and rights. This will impact importing/exporting, practices on farm and government accessibility to farms.

The action plan is presented in two tranches. The first focuses on immediate priorities – clarifying roles, modernising processes and providing training tools. The second tranche will build on successful initiatives, consider social and cultural impacts and develop long term resolutions. Significant progress on both tranches by 2030 is proposed.

Key proposed amendments following submissions and consultation include:

  • Placing greater decision-making discretion with regional councils and management agencies – including the ability to create exemptions, issue permits for pests and produce small scale management plans
  • Increasing and introducing new penalties, including for obstructing a lawful search
  • The ability to grant one-off or ad hoc permits for imported goods, and
  • Removing the need for the current exemption for regional councils to enter private land to manage pests.

A draft bill is anticipated to be presented to Parliament in late 2026.

To read more on the Biosecurity System Action Plan, the steering group workshops and the proposed next steps, click here.

 

Employee v contractor

On 21 February 2026, a new ‘gateway test’ was introduced to determine whether an individual is an employee or a contractor in terms of employment law. The gateway test does not apply retrospectively.

Gateway test: An individual is a contractor if they meet all the gateway test criteria. These are:

  • There must be a written agreement stating they are an independent contractor or are not an employee
  • No restriction from working for others (except while undertaking agreed work)
  • They are not required to work at a specified time/period OR they can subcontract the work, subject to legally required or justifiable vetting
  • Additional future work can be declined without the arrangement being terminated, and
  • There has been a reasonable opportunity to seek independent advice before entering into the arrangement.

If all criteria are satisfied, the individual is a contractor. If any of the criteria is not met or for claims brought prior to 21 February 2026 the common law test (below) applies.

The four factors below are considered together to determine whether an individual is a contractor:

  1. Intention – what did the parties intend the relationship to be? Consider entitlements received – for example, contractors are not entitled to holiday pay.
  2. Control v independence – high employer control over hours, work and methods may be indicative of an employer/employee relationship
  3. Integration – is the role fundamental to an employer’s business and continuous in nature, and
  4. Fundamental/economic reality – does the economic reality reflect a person in business on their own account? Consider fee structure, tax obligations, ability for the individual to profit and who bears financial risk.

The distinction between an employee and contractor is highly relevant for the rural sector as you may have both contractors (such as sharemilkers and contract milkers) and employees (farm hands, managers, etc) working on your property.

 

Wills and EPAs: essential for rural sector

For people who are responsible for farms and other major assets, it is important to ensure you have a current will and Enduring Powers of Attorney (EPAs). If you don’t have these and you die unexpectedly, lose mental capacity, or are unable to attend to your personal affairs for a period, it could lead to not only farming operations being disrupted, but also family uncertainty and having to spend time and money on sorting things out.

Will: Your will sets out your instructions about the distribution of your property to your family after you die. Even if you have a will, it is good practice to regularly review it, so it reflects your current situation and wishes.

If you don’t have a will, there is legislation[1] that decides how your estate is divided up; this arrangement may not be what you would wish. To prevent this, it’s optimal (and much easier) to ensure you have a valid will that reflects your wishes. Your family will thank you for it.

EPA: An EPA is a legal document that allows a trusted person (your attorney) to manage your affairs and personal care. There are two forms of EPA – one covering property affairs and the other about your personal wellbeing. An EPA for personal care only applies if you lose mental capacity, while an EPA for property can also apply while you have capacity.

For a property EPA, your attorney could be a trusted friend or relative, or you could appoint a trustee company to manage your property matters.

For a personal care and welfare EPA, you can only appoint a person as your attorney.

We can help you set up EPAs and a will or, if you already have them, review them so they reflect your current situation.

[1] Administration Act 1969.

 

 

DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Content Copyright © NZ LAW Limited, 2026.    Editor: Adrienne Olsen.       E-mail: [email protected]      Ph: 029 286 3650

Navigating redundancy

Employment Law, Human Resources, Regulatory Compliance, Risk Management, Workplace Regulation, Workplace Rights
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Understanding the legal process for employers

Redundancy refers to a situation where an employee’s position is deemed superfluous to an employer’s needs. Understandably, a redundancy proposal can bring stress and uncertainty to those affected. Unfortunately, it is a term that many New Zealanders may be familiar with.

We provide a summary of the required process, and obligations by you, as an employer, in proposing a potential redundancy in your organisation.

 

Lawful redundancy

For a redundancy to be lawful, it must be both justified and carried out through a fair process. A redundancy is justified only where there is a genuine commercial reason for it; redundancy cannot be used as a means to dismiss a poor performing employee or as an alternative to a disciplinary process for misconduct.

‘Genuine commercial reasons’ may include a downturn in work/revenue, declining financial performance, organisational restructuring, or the merger or acquisition of a business. Courts are increasingly applying scrutiny into the ‘commercial rationale’ for a redundancy.

However, even where a genuine reason exists, the dismissal will not be lawful unless the correct process is followed.

 

Process

The process that all employers must follow includes:
• Providing your employees with relevant information about the proposed change and the potential impact on their employment if the proposal is adopted
• Consultation with your employees and considering their feedback (and enabling your employees opportunities to seek advice or support within the consultation period)
• Considering alternatives to redundancy, and
• Following any additional procedural requirements specified in the relevant employment agreement or policy documents.

 

Providing information

The Employment Relations Act 2000 sets out that an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of one or more of his or her employees, is required to provide the affected employees with access to relevant information about the decision.

The term ‘relevant information’ will depend on the specific circumstances. It includes, however, information necessary for employees to understand the rationale for the proposed change and to enable them to provide informed feedback. Your employee is entitled to ask for additional information relevant to your proposal. While an employer is not required to provide confidential information, they must be able to genuinely demonstrate that disclosure would cause actual, unreasonable prejudice, and must show that they have explored alternative options for confidential consultation.

 

Consultation

You are not only required to provide a potentially affected employee with all relevant information, but you must also ensure there is a genuine opportunity for your employee to comment on that information before any decision is made. This includes providing sufficient time to provide feedback.

You must approach this process with an open mind and genuinely consider any feedback received before deciding whether to proceed with the proposed change. Without genuine consultation, the redundancy may be deemed a pre-determined outcome, and a breach of your obligation as their employer to act in good faith.

 

Selection criteria

In circumstances where you are reducing a number of same/similar roles, a fair and reasonable selection process must be followed to decide which of your employees will be appointed to the remaining roles. Clear and relevant selection criteria should be provided to your employees in advance, and their feedback sought. This includes providing details as to how that criteria will be assessed and weighed.

 

Redeployment

If a role is disestablished, you have an obligation to consider redeployment opportunities within your organisation for any of your affected employees. The affected employee/s continuing employment must be considered before a new or vacant role is advertised externally. Redeployment must be considered for an affected employee, even if some (reasonable) training or upskilling may be required.

Your obligation to consider all redeployment options, stems from an employer’s statutory requirement of good faith – to be active and constructive in maintaining the employment relationship, including being responsive and communicative.

 

A challenging time

Proposed redundancy can be a challenging and uncertain time for all; but understanding the legal framework and the required process can help you to navigate this with more confidence.

It is also important to carefully review employment agreements and relevant workplace policies to carefully identify any relevant provisions, including any entitlement to redundancy compensation.

If your organisation is contemplating redundancies, we recommend you talk with us at the outset; this will help you and your employees better understand their rights and obligations.

 

 

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2025.     Editor: Adrienne Olsen.       E-mail: [email protected]     Ph: 029 286 3650 

Disputes arising out of a first job

Dispute Resolution, Employment, Employment Law, Legal Guidance, Personal Grievances, Workplace Rights, Youth Law & Guidance
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Sally met up with her sister Samantha and her niece Sarah for coffee at a local café. Sally was excited to see Sarah, as she had recently landed herself her first weekend job working as a waitress in another café in town. Sarah, normally bright and chatty, barely looked up when Sally arrived.

Sally gently asked Sarah how things are going and whether she is enjoying her new job. Sarah quietly answered that she no longer worked at the café. She explained that even though she really enjoyed working at the café, her boss didn’t give her a written employment agreement recording the terms of employment that they agreed on, he never paid her, and he didn’t give her copies of her timesheets when she asked for them. Sarah was too embarrassed to keep asking her boss to give her the documents and to pay her, because he made her feel like she was annoying him and wasting his time. She started feeling really uncomfortable at her job and eventually just stopped going in and she hadn’t heard from her boss since.

Clearly annoyed by Sarah’s work situation, Samantha said that she was going to post about the café and their poor treatment on the local grapevine page.

Sally recalled an article written by Edmonds Judd dealing with defamation and recommended that Samanatha and Sarah rather set up a meeting with her lawyer at Edmonds Judd to get advice on how to resolve the issue.

The team at Edmonds Judd confirmed that Sarah is entitled to all of the basic rights that protect employees, regardless of her age and that this was her first job. Sarah’s boss breached the terms of her employment agreement.

Sarah’s boss was required to:

  • provide her with a written employment agreement;
  • pay her according to the agreement which should provide her hourly wage, frequency of pay and method of pay;
  • keep records in a written form showing for example: time records (including days and hours worked), wage records (including wages paid and how the wages were calculated), and holiday and leave records;
  • record Sarah’s age in his usual wage and time records; and
  • provide Sarah with copies of her employment records if requested.

The team at Edmonds Judd explained to Sarah that given her age and limited time working for her employer, she is entitled to the starting-out minimum wage, but that the parties should have recorded her hourly rate and terms of payment in her employment agreement.

Even though a couple of weeks had passed since she left her employment, she had the right to approach her boss about her dispute. Employees must raise their personal grievance with their employer within 90 days of the issue arising or coming to their attention. If she can’t resolve her dispute with him directly, she is entitled to apply to the Employment Relations Authority for assistance to resolve the dispute.

Her lawyer explained that the first step is to give her boss a written letter setting out what her personal grievance is and how she suggests that the parties resolve it. If communicating with her boss directly does not resolve the matter, then she can apply to the Employment Relations Authority.

Kristin O’Toole

Uber drivers are employees – for now

Employment Law, Gig Economy, Supreme Court Decisions, Workplace Advice, Workplace Rights
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The Supreme Court’s decision is final, but proposed legislation may off an alternative

Uber has an unusual but highly successful business model. It has proved difficult to classify its drivers under employment law, both in New Zealand and in other countries where it operates. 

Employees vs independent contractors

The issue is whether Uber’s drivers are employees or independent contractors. The legal status of Uber drivers has significant consequences.

Employees have a range of statutory entitlements, including annual leave, sick leave, bereavement leave, employer contributions to KiwiSaver, minimum wage levels, and the right to join a union and engage in collective bargaining with their employer. 

Independent contractors have none of these rights. However, they are entitled to offset their expenses against their income for tax purposes. Employees cannot do this. 

The New Zealand court system has been grappling with this issue for the last five years. In 2021, the Etū union filed proceedings in the Employment Court seeking a declaration that four Uber drivers were employees. The Employment Court ruled in the union’s favour, declaring that the drivers were employees. Uber appealed to the Court of Appeal. The Court of Appeal declined the appeal. Uber sought, and was granted, permission to appeal to the Supreme Court. The Supreme Court released its decision on 17 November 2025. [1]

 

Supreme Court decision 

The Supreme Court upheld the Employment Court’s decision that Uber drivers are employees, The court applied the well-established test for determining whether workers are employees set down in the Bryson case.[2] Bryson considered the issue of whether crew members on the ‘Lord of the Rings’ film project were employees or independent contractors. The test derived from this case involves considering the intention of the parties (how they describe their arrangement), the degree of control the company has over the worker, the extent to which the worker is integrated into the company’s business and whether the worker can realistically be said to have their own business. 

Uber’s contractual documentation avoids the terms employee and independent contractor altogether. Uber claimed that it merely provided a service to drivers and riders by matching them through its app. The Supreme Court found that this documentation did not reflect the true position and that, in reality Uber was using its drivers to provide transport services to its customers.

The court found that Uber exerts a high degree of control over its drivers, which suggests they are employees. Uber monitors the location of its drivers while they are using the app. Uber operates a reward system for drivers that strongly encourages them to accept nearly all the trips offered to them. Once a driver accepts a trip, Uber specifies the route they must take and the price for the trip. 

The court accepted that drivers are not integrated into Uber’s business in the traditional sense. They do not wear uniforms or have Uber branding on their vehicles. The court found, however that the drivers are integrated into Uber’s business in the sense that they are the ‘face’ of Uber’s business. The drivers are the only individuals that customers have contact with when buying services from Uber. 

The court also held that drivers do not, in reality, operate their own businesses. They have no opportunity to generate goodwill through a loyal customer base. They are not provided with customers contact details. They are prohibited from providing services to customers outside the Uber framework. In addition, customers are unable to select a specific driver. The app allocates a driver to them.

The Supreme Court is New Zealand’s highest court; therefore the court’s decision is the final say of the New Zealand courts on this issue. However, there is currently draft legislation before Parliament that, if enacted, will change the law relating to this issue. 

 

The proposed ‘gateway test’

The Employment Relations Amendment Bill includes a proposed ‘gateway test.’

The Bill lists five criteria for the gateway test. If a worker’s contract meets all five criteria, then they will be deemed to be an independent contractor, and they will be unable to take legal action to be treated as an employee. 

However, if the contract does not meet all five prerequisites, then their status may be decided by the courts using the tests applied in the Uber case. 

The five elements of the proposed gateway test are currently:

  1. The contract defines the worker as an ‘independent contractor’
  2. The worker may work for other parties (except while working for the other party to the contract)
  3. The worker is not required to work set hours, or may subcontract their work to others
  4. The contract does not end if the worker refuses additional work, and 
  5. The worker had the opportunity to take independent legal advice before signing the contract.

The Bill passed the select committee stage at the end of last year and has returned to Parliament for its second reading. 

It is unknown when the Bill will become law, as this will depend on how the government chooses to prioritise the legislation currently before Parliament. However, when the Bill is passed, it will enable companies to be certain that their workers are independent contractors, provided their agreements with their workers meet the requirements of the gateway test.

In the meantime, however the test for whether someone is an employee or a contractor is well established. If you need some help with sorting out your current work situation, please don’t hesitate to contact us. 

[1] Rasier Operations BV & Ors v Etū Inc & Anor [2025] NZSC 162.

[2] Bryson v Three Foot Six Ltd [2005] NZSC 34.

 

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2026    Editor: Adrienne Olsen.       E-mail: [email protected]   Ph: 029 286 3650

Business briefs

Business Regulation & Compliance, Consumer & Fair Trading, Employment Law & Workplace Wellbeing, News & Legal Updates, Privacy & Technology
0

Commerce Commission – Misleading and deceptive conduct – Noel Leeming

The Commerce Commission has filed criminal charges against electronics retailer Noel Leeming, alleging that its well-known ‘Price Promise’ misled consumers.

 

The retailer had promoted the promise as a guarantee that customers would always receive a match with a competitor’s price. In practice, however, the exclusions and restrictions in the terms and conditions significantly limited the application of this and many shoppers were unable to rely on the promise as advertised.

 

The Commission has alleged multiple breaches of the Fair Trading Act 1986 that prohibits businesses from engaging in misleading and deceptive conduct. The Commission emphasised the importance of large retailers being clear and honest in their advertising. It has previously warned businesses that disclaimers buried in fine print may not be enough to correct misleading impressions.

 

This investigation serves as a reminder to all New Zealand businesses of the importance of ensuring promotional promises are accurate and not undermined by hidden conditions. For consumers, it highlights the need to be cautious of marketing claims that may not tell the full story.

 

Online Casino Gambling Bill

The government has introduced the Online Casino Gambling Bill. This is a significant reform in the gambling sector that would allow online casino operators to be licensed and regulated in New Zealand for the first time.

 

Up to 15 operator licences will be allocated by auction to businesses seeking to offer online casino services to individuals in New Zealand, whether based locally or offshore. It is anticipated that large offshore gambling companies will feature prominently among applicants for the 15 licences. These licences will be valid for three years and renewable for a further period of five years. Operators will be subject to strict conditions, including mandatory age and identity verification, advertising restrictions, harm minimisation obligations and fines of up to $5 million for breaches.

 

While the Bill is intended to facilitate a safe and compliant regulated online casino gambling market, it has attracted strong opposition from more than 50 sporting organisations. Unlike the current Class 4 ‘pokie trusts’ system, which distributes millions each year to grassroots and community sport, the new framework does not require online casino operators to contribute to community funding. Sporting leaders have warned that the change could severely impact local organisations already facing financial pressure due to a lack of funding.

 

The Bill is currently before the select committee and a report on the Bill is due in November 2025.

 

Biometrics Processing Privacy Code 2025

In last summer’s edition of Commercial eSpeaking (#69), we reported on the draft Biometrics Processing Privacy Code. Since then, the Office of the Privacy Commissioner has finalised the Code; this will take effect on 3 November 2025. Organisations already using biometric technologies will have until 3 August 2026 to ensure full compliance.

 

The Code applies to organisations using automated processes to collect and use biometric information – that is, information about a person’s physical features or behavioural traits, such as facial features, fingerprints, voice or eye patterns.

 

The Code introduces 13 rules that go beyond the general information privacy principles in the Privacy Act 2020, requiring businesses that collect biometric data to take a more rigorous and transparent approach. These rules can be broadly categorised in the following way:

 

  • Purpose: Organisations must clearly identify why they are collecting biometric information and ensure that collection is necessary, effective and proportionate to that purpose
  • Safeguards: Adequate privacy protections must be in place before collection, including measures to reduce privacy risks, ensure system accuracy and strengthen security
  • Proportionality: Biometric data should only be collected where there are reasonable grounds to believe that the benefits of collection outweigh the potential privacy impacts on individuals
  • Openness: Individuals must be informed about how their biometric data will be used and disclosed so they can make an informed decision about providing it, and
  • Use limits: The Code places clear limitations on how biometric data can be used and when it may be disclosed.

 

Each rule contains specific obligations that may impact how your business collects, uses and protects biometric information. As a result, it is important that businesses review their biometric systems and policies to ensure compliance with the Code as the effective date (3 November) approaches.

 

To view the full and detailed list of the rules under the Code, please click here.

 

If you need any guidance on any of the above topics, please don’t hesitate to contact us.

 

 

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2025.     Editor: Adrienne Olsen     E-mail: [email protected]    Ph: 029 286 3650

Calling in sick

Employee Rights, Employer Guidance, Leave Entitlements, Workplace Wellbeing
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Minimising illness in the workplace

The winter months always seem to take their toll around the workplace with bugs lingering long into spring. While you can’t always control when sickness hits, as both employees and employers, there are things we can do to minimise the impact of illness in the workplace.

 

What does the law say?

There is no statutory or legal entitlement to work remotely or ‘work from home’ if employees are sick. Whether this is permitted depends on employment agreements and workplace policies.

 

Are you sick or not?

With the increase of remote working arrangements or working from home, the line can be blurred between sick leave and remote working. If an employee is sick, then they should stay home and take sick leave.

 

This does not mean that they are ‘working from home.’ There is no obligation for employees to work while they are sick. In fact, ensuring that employees have time to properly rest and recover is often more helpful in getting them back to the workplace.

 

Coming into work when unwell presents a health and safety risk to other employees; those who turn up sick are likely to expect conversations about going home to avoid others becoming ill. In some circumstances this may mean working from home if, for example, an employee feels well enough but is still contagious. If these discussions take place with care and with all individuals in mind, they are likely to be well received.

 

It is important to remember that any time an employee is not well enough to work, they may take sick leave. This can include sick leave for mental health if the impact of it is adversely affecting the employee’s ability to work.

 

When is a medical certificate needed?

Generally, employment agreements or workplace policies will set out when a medical certificate is required; this is often required where an employee is sick for three days or longer. In workplaces where there is a high level of trust, medical certificates are usually not needed on every occasion. If there is a prolonged illness or something that is going to have a lingering/flow-on effect, medical certificates are helpful to assist employees and employers to manage the issue.

 

If there is no medical certificate, understanding exactly what is going on and how long an employee thinks they may be away from work is important. For an employee, this shows good faith in assisting their employer to manage their absence and workload. That communication can also mean that there is less stress for the employee resulting from their absence from work.

 

There is no need for an employee to provide every detail of an illness, but the more information that is provided, the better the employer can plan around a situation and support their employee. Employees should expect their employers to ask for more detail of the illness or injury, and what that means in terms of their role, in instances of extended sick leave.

 

Requesting sick leave

The procedure for requesting sick leave is generally contained in workplace policies or employment agreements. Although employees are entitled to take sick leave when they are unwell, they should always contact their supervisor or manager first (by phone, text or email, in line with specific workplace policies). It’s essential that employees notify their workplace at the earliest opportunity – either before the start of their upcoming shift or at the start of the working day.

 

In our experience, where the focus is on hauora and where communication is strong, sick leave will be well managed for the benefit of both employees and employers.

 

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2025.     Editor: Adrienne Olsen     E-mail: [email protected]    Ph: 029 286 3650

Understanding workplace accommodation and service tenancies

Agriculture & Rural Law, Employer Responsibilities, Employment Law, Legal Tips for Employers, Residential Tenancies, Uncategorized, Workplace Compliance
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Complex legal obligations

In certain sectors, particularly agriculture, tourism and residential care, it’s common for employers to provide housing to their employees as part of the job. These arrangements are known as ‘service tenancies.’ They can be legally complex due to being dually governed by both employment law and residential tenancy law.

While providing accommodation for employees can support recruitment and retention, it also creates legal obligations that employers must manage carefully. In particular, an employer who provides accommodation becomes a landlord under the Residential Tenancies Act 1986 (RTA), with all the associated duties and liabilities.

 

What is a ‘service tenancy’?

A service tenancy exists when an employer provides accommodation as part of an employment package. The key legal feature is that the right to occupy the premises is tied to the job – if the employment ends, an employer can give notice to also end the right to stay in the accommodation.

As the RTA applies to service tenancies, employers are subject to the same rules as residential tenancies, including:

  • The requirement for a written tenancy agreement
  • Obligations around rent, maintenance and quiet enjoyment, and
  • Dispute resolution through the Tenancy Tribunal.

Employers as landlords: key obligations

Employers offering accommodation must meet the full legal obligations of residential landlords, including:

  • Healthy homes standards: all residential rental properties, including service tenancies, must meet the standards’ requirements around heating, insulation, ventilation, drainage and moisture control
  • Tenancy agreements: a written tenancy agreement is mandatory, even when the housing is ‘part of the job.’ The agreement should clearly state:
  • That the tenancy is a service tenancy
  • The relationship between the tenancy and the employment agreement, and
  • The rental value or allowance (even if nil)

There need not be two separate documents: an employment agreement may incorporate the terms of the tenancy agreement, provided the requisite detail above is included.

  • Bond lodgment: if a bond is taken, it must be lodged with Tenancy Services within 23 working days after it’s received from the tenant/employee, even if the employer sees the accommodation as part of a broader employment arrangement, and
  • Notice periods: termination of a service tenancy must be handled according to section 53B of the RTA. If the employment ends, the landlord (employer) may give 14 days’ notice to vacate. However, this must be done with due process to avoid unlawful eviction claims.

 

Common pitfalls

Employers sometimes assume that service tenancies are informal or outside standard tenancy rules. This is not the case. Common mistakes include:

  • Failing to record the tenancy in writing
  • Not meeting healthy homes requirements, exposing employers to fines
  • Assuming the tenancy ends automatically with employment termination
  • Failing to consider the tax implications of the value of the rental, and
  • Charging rent without clearly defining it in the employment or tenancy agreement.

These errors can lead to disputes before the Tenancy Tribunal, with potential penalties for unlawful eviction, unlawful entry or breaches of maintenance obligations.

 

Employment relationship risks

As the accommodation is tied to employment, disputes can straddle two legal regimes: employment law and tenancy law. For instance, if an employee is dismissed and then evicted from their home they may challenge both the dismissal and the tenancy termination. However, while they can overlap in practice, the legal jurisdictions remain entirely separate and legal disputes can only be pursued in the relevant jurisdiction. For example, an employee cannot raise an issue with the compliance of healthy homes standards as part of a personal grievance claim in the Employment Relations Authority for unjustified disadvantage.[1]

Careful drafting is essential. Either the employment agreement needs to fully encompass the terms of the tenancy, or a standalone tenancy agreement also needs to be prepared.

 

Best practice for employers

  • Clearly link the accommodation to the employment but avoid automatic termination clauses that breach tenancy law
  • Ensure housing meets healthy homes standards, even if the employee is not paying rent, and
  • Talk with us before terminating the tenancy, especially if the employment ends in contentious circumstances.

 

Real benefits but be careful

Providing accommodation as part of an employment package can offer real benefits – but only if managed correctly. Employers must wear two hats: one as an employer and the other as a landlord.

Understanding and fulfilling their obligations under the RTA, as well as employment laws and regulations, is essential to avoid costly legal disputes and to ensure that employees are treated fairly and lawfully.

If you’re providing housing to staff, we recommend reviewing your tenancy and employment documents to ensure they’re up to date and legally compliant.

 

[1] Unjustified disadvantage is where an employer takes actions that negatively impact an employee’s working conditions, or ability to do their job, without a reasonable or justifiable reason.

 

DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Property Speaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

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