Employment Law Cases: Independent Contractors and Minimum Wage Requirements

Case Study 1: Garden Centre and Labour Hire Organisation

COMLAW 314Page 2of 3PARTAPandora Nurseries Ltd (Pandora) is a garden centre that grows NZ native trees and plants them in properties in the Auckland area. A large part of Pandora’s business involves customers who want a hedge solution for their properties. Hedges often require many large trees, which have a high profit margin for Pandora. After the Covid-19 lockdown in early 2020, there is a surge in demand for Pandora’s trees because many clients have been sitting at home contemplating their gardens and possible improvements. The staff at Pandora are soon overwhelmed and it is necessary for Pandora to obtain extra labour. Helping Hands Ltd is a labour hire organisation. There are workers who have signed contracts with Helping Hands Ltd, and these workers’ contracts describe them as ‘independent contractors’. Pandora contracts with Helping Hands Ltd to get 7 additional workers to assist with delivery and planting of trees at properties of the clients of Pandora. The work involves landscaping such as earthmoving work and the work of selecting and planting trees.The workers from Helping Hands Ltd (HHL workers) are required to wear a uniform that is the same as that worn by Pandora’s normal employees. HHL workers are given training on how to plant the different types of trees that Pandora sells to clients, as well as fertilizing techniques.HHL workers are not paid directly by Pandora. Instead, they invoice HHL for the work that they do and HHL then invoices Pandora for the work done by HHL workers. When a client orders trees, Pandora assigns a team of workers to deliver the trees and perform any necessary landscaping work and plant the trees with appropriate methods to ensure their flourishing at the client’s property. HHL workers and the normal employees of Pandora are part ofseparate teams, but are assigned to similar types of jobs as those teams composed of Pandora’s normal workers.After 8 months, Bob (one of the HHL workers who has been working on jobs for Pandora) is told by Pandora that he is no longer needed (but all other HHL workers are still working for Pandora). He wishes to bring a personal grievance (PG) against Pandora and/or HHL. Required:Please provide your opinion as to whether HHL and/or Pandora are valid defendants. Do not discuss the substance of the PGclaim itself. You are only to provide your advice about whether the HHL workers are employees or independent contractors and whether they can bring their claims against HHL and/or Pandora. Please discuss the issues in depth, using any relevant cases and statutory provisions.Total Marks for PartA= 15marks

COMLAW 314Page 3of 3PARTBMallory applies for a job as a teacher at an English language school in Auckland. She is interviewed for the job. At the interview, the manager (Quentin) tells Mallory that due to the Covid-19 situation, there are fewer students at the school and that onlythe minimum wage of $18.90 per hour can be offered for the position. The interview goes very well and Quentin offers Mallory the job at the end of the interview. Quentin insists that she decide immediately whether she would take the job or not. AlthoughMallory knows that the industry standard rate of pay is significantly higher than the minimum wage, she has no other job offers at the present time and so she accepts the job without checking with anyone else first. Mallory really enjoys her job and thestudents find her to be the most helpful for their learning of all their teachers at the language school. But Mallory becomes concerned when, 2 months after starting the job, she has a conversation with Grace, another teacher at the school. Grace tells Mallory that there is a collective agreement between the union (the Federation of English Language Teachers) and the language school which specifies $25 per hour as the minimum rate of pay. Grace herself receives $28 per hour. Grace promises to inform the union delegate who will contact Mallory.The union delegate (Alia) arrives at the language school the following day, which is a Friday. Alia arrives at 10:30am and is met at the front door by Quentin who refuses to let Alia enter because she is not wearing a medical mask. Alia can see that Quentin himself is not wearing a mask, nor are any of the other staff that she can see through the partly opened door. Quentin explains that the staff in the language school constitute a ‘bubble’ and that Alia is a person who could potentially introduce a virus if she visits them without wearing a mask. This requirement has not been imposed on any other visitors to the school.Alia does not want to cause an argument with other staff and students watching, so she goes away but later that day she emails several documents including the collective agreement to Mallory and informs her that she may join the union if she wishes and that she should be paid at least the $25 per hour minimum in the collective agreement. The next Monday, Quentin asks all the staff at the language school to meet with him individually to discuss the possibility of leaving the union. Quentin makes the point that the union is causing many problems for him and that this is threatening the financial stability of the school. Required: Mallory seeks your advice about whether she is being treated fairly by the school. Advise Mallory, using statutory provisions and any relevant cases in your answer