RASIER OPERATIONS BV v E TŪ INCORPORATED [2023] NZCA 216

RASIER OPERATIONS BV v E TŪ INCORPORATED [2023] NZCA 216 [8 June 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA645/2022[2023] NZCA 216BETWEEN RASIER OPERATIONS BVFirst ApplicantUBER PORTIER BVSecond ApplicantUBER BVThird ApplicantPORTIER NEW ZEALAND LIMITEDFourth ApplicantRASIER NEW ZEALAND LIMITEDFifth ApplicantAND E TŪ INCORPORATEDFirst RespondentFIRST UNION INCORPORATEDSecond RespondentCourt: Courtney and Mallon JJCounsel: P F Wicks KC and K M Dunn for ApplicantsP Cranney for RespondentsJudgment:(On the papers)8 June 2023 at 3 pmJUDGMENT OF COURTA The application for leave to appeal is granted on the following questions oflaw:(a) Did the Employment Court err by misdirecting itself on the applicationof s 6 (the meaning of "employee") of the Employment Relations Act2000?(b) Did the Employment Court err by misapplying the test in s 6, or in thealternative was the Court's conclusion so insupportable as to amount toan error of law?(c) Did the Employment Court err in finding that joint employment mayarise in New Zealand simply as a result of a number of entities beingsufficiently connected and exercising common control over an employee?B We reserve costs pending the outcome of the appeal.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Rasier Operations BV, Uber Portier BV, Uber BV, Portier New Zealand Ltdand Rasier New Zealand Ltd (the applicants) operate within the Uber group (Uber).Mr Abdurahman, Mr Keil, Mr Rama and Mr Ang are drivers who worked for one ormore of the applicants.[2] E Tū Inc and First Union Inc (the respondents) sought declarations in theEmployment Court on behalf of the drivers as to their employment status.1Chief Judge Inglis found that each of the drivers were in an employment relationshipwhen carrying out their work for the applicants.2 She granted a declarationaccordingly.3[3] An appeal from the Employment Court's decision on a question of law requiresleave.4 This Court may grant leave if the question of law is one that, by reason of its1 Employment Relations Act 2000, s 6(5).2 E Tū Inc v Rasier Operations BV [2022] NZEmpC 192.3 At [93].4 Employment Relations Act, s 214(1).general or public importance or for any other reason, ought to be submitted to thisCourt for decision.5[4] The applicants seek leave to appeal that decision on the following proposedquestions:(a) Did the Employment Court err by misdirecting itself on the applicationof s 6 (the meaning of "employee") of the Employment Relations Act2000?(b) Did the Employment Court err by misapplying the test in s 6, or in thealternative was the Court's conclusion so insupportable as to amount toan error of law?(c) Did the Employment Court err in finding that joint employment mayarise in New Zealand simply as a result of a number of entities beingsufficiently connected and exercising common control over anemployee?[5] The respondents oppose the application for leave. They say the EmploymentCourt made no errors of law and closely analysed the evidence to reach the conclusionsit did.Background[6] Uber provides a digital ridesharing and food delivery platform. Via the Uberapp, a person advises where they want a ride to, Uber offers the trip to availabledrivers, and a driver accepts the offer, collects the person and drives them to theirchosen location. Similarly, via the Uber app, a person selects a restaurant and orderstheir food, Uber offers the food pick-up and delivery trip to available drivers, and adriver accepts the offer, collects the food from the restaurant and drives the food to theperson at their nominated address for delivery. The person obtaining the ride or thefood delivery service makes payment to Uber and Uber makes payment to the drivers.5 Employment Relations Act, s 214(3).[7] The first applicant was an entity involved in the Uber rideshare business priorto 1 December 2018. Mr Ang and Mr Keil worked for the first applicant. The thirdand fifth applicants were involved in the Uber rideshare business. Mr Abdurahman,Mr Keil and Mr Rama worked for the third and fifth applicants. The second and fourthapplicants were involved in the UberEats business. Mr Rama worked for the secondand fourth applicants.Employment Court decision[8] Chief Judge Inglis said that the issue before her was one of statutoryconstruction of the definition of s 6 of the Employment Relations Act.6 She referredto the purpose of the Act, s 6 and the satellite provisions.7[9] The Judge noted that there were two prerequisites to falling within the s 6definition: a worker must be engaged to work for hire or reward and be engaged undera contract of service.8 She noted that what amounted to a contract of service was tobe assessed having regard to "the real nature of the relationship".9 That was to beassessed pursuant to s 6(3) by considering "all relevant matters, including any mattersthat indicate the intention of the persons", while observing the statutory caution "notto treat as a determining matter any statement by the person that describes the natureof the relationship".10[10] The Judge considered the matters relevant to assessing the real nature of therelationship were: the nature of the Uber business and the way it operated in practice;the impact of the Uber business model and its operation on the drivers; who benefitedfrom the work undertaken by the drivers; who exercised control over the drivers' work,the way in which it was conducted and when and how it was conducted; any indicationof intention, including what can be drawn from the nature, terms and conditions of thedocumentation between the parties; and the extent to which the drivers identified as,and were identified by others as, part of the Uber business.116 E Tū Inc v Rasier Operations BV, above n 2, at [6].7 At [8].8 At [12].9 At [12].10 At [12].11 At [25].[11] The Judge examined those matters on the evidence. She concluded that, on theevidence and construing s 6 purposively, the drivers were in an employmentrelationship when driving for the benefit of the Uber businesses.12 She furtherconcluded that the Employment Relations Act did not exclude joint or multipleemployers employing an employee.13 She considered the real nature of therelationship in this case was joint employment (except in the period prior toDecember 2018 when Mr Ang and Mr Keil were each employed by the first applicantonly).14Leave assessment[12] We are satisfied that leave to appeal should be granted on the first twoquestions. As they are concerned with the correct approach to s 6, they raise questionsof law in the context of new ways and fast-moving changes to the way in which workis done.15 Similar applications to that considered by the Judge in this case have beenmade in other jurisdictions with, as the Judge noted, "mixed results".16 In a previousNew Zealand case, the driver was found not to be an employee.17 While thedeclaration related to the individual drivers on whose behalf the declarations weresought, it has a potential broader impact for a large number of other drivers wherethere is an apparent uniformity in the way in which the businesses operate and theframework under which the drivers are engaged.18[13] We are also satisfied that leave should be granted on the third question. Asframed it raises a question of law as to the factors that determine whether there is ajoint employment of an employee. In the context of Uber businesses with multipleindividual drivers who may be impacted by the decision, it is of general or publicimportance. It may have an impact on other businesses.12 At [81]–[82].13 At [87]–[88].14 At [90] and [92].15 As noted by Chief Judge Inglis at [2] and [3].16 At [1].17 Arachchige v Rasier New Zealand Ltd [2020] NZEmpC 230, [2020] ERNZ 530.18 As noted by the Judge at [95].Result[14] The application for leave to appeal is granted on the following questions oflaw:(a) Did the Employment Court err by misdirecting itself on the applicationof s 6 (the meaning of "employee") of the Employment Relations Act2000?(b) Did the Employment Court err by misapplying the test in s 6, or in thealternative was the Court's conclusion so insupportable as to amount toan error of law?(c) Did the Employment Court err in finding that joint employment mayarise in New Zealand simply as a result of a number of entities beingsufficiently connected and exercising common control over anemployee?[15] We reserve costs pending the outcome of the appeal.19Solicitors:Russell McVeagh, Auckland for ApplicantsOakley Moran, Wellington for Respondents19 Court of Appeal (Civil) Rules 2005, r 53G(3).