Full source list for If I engage someone on a casual or contractor basis, am I exposed under the new gateway test?
Seven numbered references for /wayfinder/refs/contractor-classification-gateway-test:
1. The five-criteria gateway test sits in new section 6(7) of the Employment Relations Act 2000, inserted by section 4 of the Employment Relations Amendment Act 2026. The criteria, as enacted: written agreement specifying the worker is an independent contractor or is not an employee; freedom to work for others (except while performing work for the contracting party); flexibility on hours OR ability to subcontract; arrangement does not end solely because of declining additional work; reasonable opportunity to seek independent advice before entering the arrangement. Note on the four-versus-five discrepancy in commercial commentary: the original September 2024 announcement of the proposed test set out four criteria. The enacted Act has five — independent advice was added as a separate criterion during the legislative process. Sources still citing four are reading the original proposal, not the enacted statute.
2. Rasier Operations BV v E Tū Incorporated, Supreme Court, November 2025. The Supreme Court confirmed the Court of Appeal's decision that four Uber drivers were employees rather than contractors despite the contractor framing of their written agreements. The court applied the section 6 real nature of the relationship test, which examines control, integration, intention, and economic reality. This decision was the immediate trigger for the legislative reform; the test it applied is still the test that runs if a contractor arrangement fails the new gateway.
3. Transitional provision for pre-existing arrangements: an arrangement entered into before 21 February 2026 that meets the specified-contractor criteria as at the commencement date is treated as a specified-contractor arrangement from that date — but only if no employment-status proceedings under section 6 had been brought before commencement. The transitional provision does not retrospectively bless arrangements that fail the criteria.
4. "Not restricted from working for others" criterion: section 6(7)(b) requires that the worker is not restricted from performing work for any other person, except while actually performing work for the contracting party or facilitated by the contracting party. Blanket non-compete clauses across the engagement period likely fail this criterion; exclusivity during the performance of work is permitted.
5. The contract-centric vs real-nature question: the NZ Law Society submission on the Employment Relations Amendment Bill flagged that the gateway test as drafted is unclear as to whether the criteria are assessed by reference only to the written agreement, or based on how the relationship operates in practice. The reference to "arrangements" in section 6(7) suggests a less contractual approach. This will be a major dispute area as case law develops.
6. Tax-side classification operates under separate IRD frameworks (IR330C schedular-payment rules, withholding tax). An arrangement can be a specified contractor for ERA purposes and still trigger schedular-payment withholding. The two tests are independent; both should be checked separately.
7. What getting it wrong costs. If a person engaged as a contractor is found to be an employee under section 6, the arrangement is treated as employment and the employer becomes liable for the minimum entitlements that were not provided — wages and holiday pay among them. Section 142 sets a six-year limitation period for an employment relationship problem that is not a personal grievance — no action may be commenced "more than 6 years after the date on which the cause of action arose" — so the exposure reaches backward, not only forward. Section 134 makes any party who breaches an employment agreement liable to a penalty, with the maximum amount set in section 135. The opposite error — treating a genuine contractor as an employee — creates no equivalent statutory liability under the Act.