Employment Court rules four Uber drivers are employees

In October last year, the Employment Court ruled that four Uber drivers are employees rather than independent contractors, challenging the traditional gig economy model. You can read the full Uber decision here.

The court’s ruling means that Uber drivers could now be entitled to receive the minimum wage, holiday pay and other benefits that are typically provided to employees.

Two major factors that led to the court’s decision were that:

  1. Uber drivers are dependent on the Uber platform for the opportunity to earn income; and
  2. Uber exerts a significant degree of control over the way in which the work is performed.

This decision is a landmark ruling that potentially has far-reaching implications for the gig economy as a whole, where companies such as Uber typically classify their workers as independent contractors.

If you engage workers as independent contractors, we recommend you carefully consider whether the nature of the work gives rise to an employment relationship. Please contact us if you need specific advice.


Facial recognition and the Privacy Act: balancing security and individual rights

The Office of the Privacy Commissioner has urged businesses to proceed with caution when using facial recognition technology (FRT).

The Commissioner’s warning comes as Foodstuffs, that owns Pak’n Save, New World and Four Square, trials the use of FRT in 29 North Island stores. Foodstuffs says its use of FRT is aimed at preventing crime, and keeping its staff and customers safe.

The Commissioner is doubtful whether the benefits of FRT outweigh its privacy-intrusive nature in the retail setting. The Commissioner is monitoring Foodstuffs’ controlled trial and will release a report outlining a proposed regulatory approach to FRT at the end of this year.

If you are thinking about using FRT for your business, you should conduct a privacy impact assessment. If you need more help, please be in touch.


Cartel conduct: Commerce Commission warns eight freight forwarding companies

In October 2022, the Commerce Commission warned eight freight forwarding companies for likely engaging in cartel conduct. This highlights the need for businesses to take care when entering into a supplier/customer relationship with competitors.

The warnings related to conduct that occurred between 2014 and 2018. At that time, the eight companies engaged Mondiale Freight Services Limited and Oceanbridge Shipping Limited to provide wholesale freight forwarding services. These services included, for example, a company combining its customers’ freight with that of Mondiale or Oceanbridge, for the sake of efficiency, if the company did not have a full container of freight.

Given the eight companies were also in competition with Mondiale and Oceanbridge, they were concerned Mondiale and Oceanbridge would learn confidential and commercially sensitive information regarding the companies’ customers. To protect against this, the companies entered into arrangements with Mondiale and Oceanbridge not to compete for each other’s customers. This included:

  • Refusing to quote for the other party’s customers;
  • Apologising to the other party when the other party’s customers were approached; and
  • Discussing the amount a party should quote the other party’s customers to ensure the price would not be competitive.

The commission considered these arrangements likely amounted to cartel conduct and went further than necessary to protect the companies’ confidential and commercially sensitive information.

In June 2022, Mondiale and Oceanbridge were fined almost $10 million combined for their involvement. The commission decided on a warning for the eight companies given they had significantly less market and negotiating power.

All businesses entering into a supplier/customer relationship with a competitor should ensure the arrangement does not breach their obligations under the Commerce Act 1986.


Disclaimer: All the information published in Commercial eSpeaking is true and accurate to the best of the author’s knowledge. It should not be substituted 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 the views of the authors individually and do not necessarily reflect the view of this firm. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit being given to the source. 

Content Copyright © NZ LAW Limited, 2023. Editor Adrienne Olsen, e. adrienne@adroite.co.nz   m. 029 286 3650