HR Investigations | What Employers Need to Know Before Starting

Yet another case has perpetuated the confusion as to the employment status of workers who have entered into independent contractor agreements. Following the landmark Uber case in 2025 where the Supreme Court decided certain Uber drivers were in fact employees (see our earlier article here), in Postal Workers Union of Aotearoa incorporated v New Zealand Post Limited [2026] NZEmpC 218 [16 September 2026], the Employment Court has found that certain New Zealand Post courier drivers are contractors.

This latest decision emphasises that the particular facts of each case determine whether a worker is a contractor or an employee.

In this case counsel agreed that the approach to be taken was as stated in Bryson v Three Foot Six Ltd and confirmed recently in Rasier Operations BV v E tū Inc (Uber). As the Supreme Court noted in Rasier, the real nature of the relationship is a question of fact. The Court considered the Common Law Tests.

Control Test

The Court decided NZ Post does exercise some control over the delivery partners (drivers) concerned, by mandating the area they work in, including being able to change that area reasonably freely once consultation has occurred. Control is also exercised over what is displayed on the drivers’ vehicles and the requirement to wear a NZ Post uniform. Some advertising space is available on the vehicle for each delivery partner, but it is not much in comparison to the dominant NZ Post display.

However, there is no control over the hours of work. They differ for each delivery partner but that is a function of how they each choose to work and of the industry itself. Similarly, they decide their own break times. Some of them engage other people to perform some part of the contracted services, which is another indication that control is not being imposed on them in the same way that would apply in an employment relationship. None of them are required to personally provide the services.

The Union argued that one area in which control was said to be exercised was over the limited right to decline work illustrated by an instruction to the delivery partners to “clear the floor” of packages each day. That is no more than a statement about fulfilling contracted services and, therefore, is not helpful in this analysis.

A stronger part of the union’s case was over vehicles and uniform requirements. In TNT Worldwide Express (NZ) Ltd v Cunningham, the Court of Appeal held that too much emphasis should not be placed on the ability of one contracting party reserving to itself the ability to control the presentation of its image to the public by the drivers and their vehicles, the organisation and arrangements of collection, sorting and delivery that was in issue in that decision. The Court commented that such a degree of control is inevitable for the efficient running of the business whether the couriers in that case were employees or contractors and to regard that feature as decisive would be a misapplication of the test. It follows that the requirement to display NZ Post’s name and logo, at the expense of the drivers, is not determinative. The same analysis applies to the requirement to wear approved uniforms.

In summary, the delivery partners are left to their own devices to deliver the contracted services. The control exercised does not go beyond what is necessary to ensure delivery quality or customer satisfaction. This test points away from employment.

Integration Test

The Court held that there is a degree of integration, but it is not sufficient to tilt this evaluation in favour of the delivery partners being classified as employees.

The Court accepted that the requirements to wear an NZ Post uniform, and for the vehicles to prominently display NZ Post’s colours, logo and name, suggests integration.

Having made that point, however, the Court said the integration is only of a limited sort. The delivery partners are not required to attend regular meetings. They are not subject to supervision or required to attend to any administrative tasks for or on behalf of NZ Post. The administrative tasks they undertake are for themselves in the sense that it is necessary to keep a record of what has been delivered and for which payment will be made.

The point is reasonably finely balanced but marginally suggests that this test favours the union’s position that the delivery partners are integrated into NZ Post’s business.

Fundamental Test

There are some features of the relationship that might tend to support the conclusion that the delivery partners are not operating independent businesses, including that NZ Post caps the income received by its courier drivers. NZ Post reviews the piece rates paid, especially where volumes have increased, and makes adjustments to them. There was no convincing answer to questions from the Court about why NZ Post might be interested in how much is earned by a delivery partner if the services were being properly performed.

However, countering that assessment, is the way each of the delivery partners structured their businesses and operated them in practice. One delivery partner has two contracts with NZ Post and she is a sole trader employing employees, so it’s difficult to contemplate how she may be an employee.

Another delivery partner is able to profit by delivering the contracted services through its employee(s).

A third delivery partner is in the same situation. He structures his business through a company and sub-contracts work when and if he needs to suit his circumstances.

The union’s evidence about the existence of a collective agreement covering similar work was said to be unhelpful. The fact that contractors and employees may be able to discharge exactly the same tasks is not of any assistance in determining the real nature of the relationship.

The last matter is goodwill. An experienced chartered accountant analysed the business accounts for each of the delivery partners and gave evidence, the thrust of which was that, for many small businesses, goodwill represents only the difference between the value of the assets to be exchanged and what the purchaser is prepared to pay on the sale of the business. He went so far to say that for many small businesses the exchange price on a sale is only the value of assets and nothing more.

In the end, the treatment of goodwill is only one factor. Its absence may point to employee status as noted by the Supreme Court in Raiser, but the absence of goodwill for the delivery partners in this case is not enough to sway the assessment towards a finding of employment status.

Conclusion

The Postal Workers Union of Aotearoa Inc sought declarations that the true nature of the relationship between three of its members and New Zealand Post Ltd was as employer and employees. The Court declined to make such orders; and the union was ordered to pay costs.

Going Forward

Since the Employment Relations Amendment Act 2026 came into force, the ‘gateway test’ now makes it easier to establish contractor arrangements by excluding a ‘specified contractor’ from the test for employment. A worker is classified as a ‘specified contractor’ when:

The worker has a contract specifying they are an independent contractor, and
the worker is not restricted from working for others; and
either the worker is not required to be available to work certain times or days or for a minimum period; or the worker is able to sub-contract the work; and
the arrangement does not terminate if the worker declines to perform an additional task, and
The worker has a reasonable opportunity to obtain independent advice before signing the contract.

The key factor to justify specified contractor status is being able to establish that either the worker has control of the performance of the work or is able to sub-contact the work (see our earlier article here).

For more information call Tony Teesdale 021 920 323 or Mauro Barsi 027 475 5583