News
Get your kicks on Route Three Foot Six
Queer Eye for the Straight Guy has a lot to answer for.
It used to be that gay men created their own culture - which, by way of certain of its features, was distinct from that pursued by the straight man.
Reality television has, of course, changed all of that. It has allowed us to see that gay men are, in fact, more stylish, sensitive, and good looking than straight men - and that heterosexuals have a quite a bit to learn from their non straight counterparts.
The result is the apparent creation of an entirely new creature - the metrosexual.
This is a man who, whilst heterosexual, is broad minded enough to borrow from his homosexual counterparts - effectively enhancing his own sexuality by effecting some of the style and sensitivity normally the preserve of the gay man.
But as the classic South Park Queer Eye tribute show demonstrates, the creation of the metrosexual has led to all sorts of unintended consequences. Straight men deliberately attempting to appear gay (in order to accentuate their heterosexuality) can leave outward observers quite confused!
The same situation is not altogether unknown in employment law.
For many years, experts in employment jurisprudence have been telling us that almost any job can be performed by way of an employment relationship - or, alternatively, as part of an independent contractor arrangement.
Outwardly, a consumer of goods or services may be completely unable to distinguish between the two different types of worker. From a legal perspective, however, the difference is massive.
Employees enjoy all of the benefits prescribed by employment legislation (and the common law). Employees have a right to take holidays, to have time off if they become parents, to have their tax deducted and paid by their employer and - perhaps most importantly - to have their problems resolved under New Zealand's employee friendly laws.
On the other hand, independent contractors are, quite simply, service providers. They do not enjoy the statutory benefits accorded to employees and, importantly, if the need for their services ends (for any reason) there is little that can be relied on at law to found a claim.
Prior to 2000, New Zealand's law effectively developed in accordance with a simple contractual theory: whether a person was an employee or not depended upon the parties' intentions - and a seemingly definitive statement of those intentions was to be found in their contract. If the contract said that the person was an employee, they were - absent any overwhelming evidence of a deliberate sort of sham arrangement.
With the introduction of the Employment Relations Act, however, the situation changed. The law required a tribunal to determine the "real nature" of the arrangement between the parties - in essence, to provide a third party determination of the nature of the relationship. Unhelpfully, however, the law did not provide any guidance as to how a tribunal should make this determination.
Over the last four years, both the Employment Relations Authority and the Employment Court have toyed with a number of different approaches - borrowing largely from the jurisprudence which has existed for the last 30 or 40 years. A recent decision, however, signals something of a change in attitude.
James Bryson was a model maker who was engaged to work on the Lord of the Rings. He signed an agreement which expressly said that it was not intended that he become an employee.
At a certain stage, there was a downsizing - and Bryson found himself out of a job. He said that, in truth, he had been an employee - and that he had been made redundant without his employer following the proper processes associated with redundancy. Bryson filed a claim against Three Foot Six Limited in the Employment Relations Authority.
Three Foot Six took issue with the fundamental premise underlining Bryson's claim - namely, it said that he had no standing to bring a claim in the employment jurisdiction because he was an independent contractor. In the Employment Relations Authority, this preliminary issue was resolved in the company's favour. Bryson appealed successfully to the Employment Court (which held that he was an employee). The company then appealed to the Court of Appeal.
Probably the fundamental issue underlining the appeal was a concern (which was apparently held industry wide) that the integrity of the film making industry would be undermined if it was not recognised that, as a matter of commercial necessity, workers such as Bryson had to be retained as independent contractors.
This issue had not escaped the Employment Court. In her decision, Judge Shaw had given some weight to this issue - but had simply resolved that a blanket rule should not apply to every situation.
The Court of Appeal, however, took a different view. In a majority decision, it held that the practice in the film industry was such that it was widely accepted that workers such as Bryson were, as a matter of practice, almost always independent contractors. It also reflected upon the consequences that might follow if this practice was disturbed, suggesting that film producers could have no confidence that the contractual arrangements required for film making would be upheld (meaning that decisions about such things as carrying on business in New Zealand might be made differently in the future).
On this basis, the Court of Appeal found that the industry context was heavily influential in determining the "real nature" of Bryson's arrangement - which was that of an independent contractor.
Bryson's case, while complex, is not unusual. In almost every situation, there are features of a relationship which could be said to be consistent with that of employment. In his situation, however, the significant step now introduced by the decision of the Court of Appeal is that a determination of the "real nature" may involve a consideration of the generally accepted industry practice. While this decision will not necessarily make all future issues of this type easy to resolve, it does offer tribunals a helpful factor to take into account when confronted by what might be described as the contractual metrosexual of employment law.
