Brooke van Velden: Workplace Relations and Safety Minister on Uber drivers winning employment status through a Supreme Court ruling

The Workplace Relations and Safety Minister says there's currently too much grey area about what defines a contractor, following the Supreme Court's Uber ruling. 

Four drivers are now legally employees, with the highest court rejecting Uber’s bid for the court to overturn a 2024 Court of Appeal ruling. 

The Government's seeking to clarify the distinction in law. 

Brooke van Velden told Mike Hosking we need clear rules in this increasingly online platform based world. 

She says we're going to see more people with flexible work and multiple agreements, so businesses and contractors need more certainty. 

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Episode Transcript

Speaker 1 (00:00):
But not a great day for Ruber, as the Supreme
Court back the Appeal Court and the Employment courts decisions
in deciding that Duber drivers are employees not contractors. Like
a number of other cases internationally, the move appears to
be towards greater worker status and the idea of the
gig economy and its inherent freedoms is being judicially sliced
to pieces. Brook van Velden is the Workplace Relations Minister
and it's with us. Good morning, Good morning mate. Do

(00:21):
you have a problem here?

Speaker 2 (00:24):
Oh? Look, one thing I know that we have a
problem with is business certainty, which is what I am
trying to build back. And as part of the gig
economy that you've talked about, I think New Zealand does
need to ensure that we have a gig economy, that
we have flexible work and that's why I'm creating a
new legal test to give businesses more certainty that they

(00:44):
can use contractors and that contractors have the ability to
be contractors. So that law is coming early next next year.

Speaker 1 (00:52):
Do you have an amount of clarity that would allow
you to be confident that if a similar case was
taken under your new law, the same result wouldn't ensue.

Speaker 2 (01:04):
What will happen is I'm not intending things to be retrospective,
but there will be four tests that need to be
met for a company to show that who they hire
as a contractor. That's pretty simple. Does the person have
a written agreement that says they are an independent contractor? Yep?
Does the worker have any restrictions from working for others?

(01:27):
If so, then know does the business terminate the agreement
for not accepting an additional task? Well, you can't do that.
And is the worker required to be available for certain times?
But if they are, can they subcontract the work? And
so if this test is met and it's in black
and white, then the law will say that person is

(01:48):
no an employee.

Speaker 1 (01:49):
Tricky part for this case, and I find it fascinating,
is that I understood that if you want to be
an Uber driver, I mean, if you want what these
full drivers want, it don't work for Uber. And yet
they didn't. They want to jerrymander the whole thing, and
they've been successful in jerrymandering it. So do you see
the problem in the law that the court saw?

Speaker 2 (02:10):
Look, I don't. I look at it and fully respect
the law and the courts, But I look at what
we need more of a New Zealand, which is a
bit more certainty. And there is what's called a Section
six test under the Employment relations Act where people can
go in and have a look at the real relationship test.
It's called of the relationship. I would say that that's

(02:33):
still a little too much gray area for businesses to
provide more jobs for people. So let's make it really clear.
If they meet this gateway test, then it's not an
employee relationship, that's a contractor relationship. I think that will
lead to more work outcomes for kiwis right.

Speaker 1 (02:50):
So what I'm asking really is you don't see what
the court has done as interventionists. They just read the
law as it stands and the law needs changing, or
do you see it as indivenuous and therefore it's a potential
problem down the track.

Speaker 2 (03:02):
Look, I think they have abided by what the law
allows them to do. I don't think currently the law
is as good as it could be, which is why
I'm stepping in to create a new change to the
law to make it very very simple. What will that
distinction between an employee and a contractor be? And I'm
sure there are other jurisdictions around the world who are

(03:23):
grappling with the same issue. But I think you know
in the online, platform based world that we're going to
see more of in the future. We are going to
see people with very flexible work. We're going to see
people with multiple agreements at any time of the day,
and companies and contractors need a bit more certainty about
what does that actually mean for me going forward.

Speaker 1 (03:44):
Good stuff, Nice to talk to you, appreciate very much.
Book van Belden, who is the Workplace Relations and Safety Minister.
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