Case Brief: Raiser Operations BV v E TŪ Incorporated [2025] NZSC 162 [17 November 2025]

Summary

The Supreme Court unanimously dismissed Uber’s appeal, upholding the Court of Appeal’s decision that the true nature of the relationship between Uber and its drivers, was one of employment.

Background

The distinction between employer and contractor is significant due to the protections and benefits afforded to employees and, conversely, the obligations (or lack thereof) for businesses when engaging workers.

Section 6 of the Employment Relations Act 2000 provides that an employee is “employed by an employer to do any work for hire or reward under a contract of service”. A Court is required to look at the “real nature of the relationship” when determining whether an employment relationship exists.

The Employment Court determined that the Uber drivers were not contractors, as their written agreement specified, but were actually employees.

Court of Appeal

The CA agreed with the Employment Court that the drivers were employees but considered the Employment Court had misdirected itself on the interpretation of section 6 (the meaning of “employee”).

The CA found the reasoning of the Supreme Court in Bryson v Three Foot Six Ltd should be applied. In asking what the “real nature of the relationship” is, a Court is required to consider all relevant matters. This includes considering; the written terms of agreement, what the arrangements were in practice, the intention of the parties, and the common law tests of:

1. Control – Does the employer control how, when, and where the work is done?
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2. Integration – Is the worker an integral part of the business or just an accessory?
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3. Fundamental – Is the worker in business on their own account?

Application of Test

Real Nature of Relationship

The CA’s starting point was the substantive rights and obligations contained in the agreement and other contractual obligations of the parties. The CA first looked at the agreements as written (“in theory”), and then the agreement (“in practice”).

The documents were complex and sophisticated, and reflective of Uber’s preferred view of the relationship. This was that it would provide services to drivers, with drivers paying Uber for those services via a service fee, and that drivers are not paid by Uber, but provide transportation services to riders who pay the driver for those services with Uber acting as a payment intermediary.

In practice, the CA found that “although the driver agreement [had] been crafted to avoid the appearance of an employment relationship, many of the provisions designed to point away from employee status [were] window-dressing”. For instance, control over when, where and how drivers carry out work, was found to be exercised by Uber through its incentive schemes.

The parties’ intentions were then assessed, with the CA confirming that the labels a party places on the relationship is not determinative of intention of the relationship. The Employment Court’s consideration of evidence relating to the subjective intentions of the drivers was considered irrelevant, as the test is what would be “known to a reasonable person observing the parties’ dealings”. The key indicators of the parties’ intention were found in provisions that:

1. precluded drivers from building up any form of personal business goodwill while driving for Uber; and
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2. reserved a high level of unilateral control to Uber.

Common Law Tests

The second stage of the inquiry is to consider the common law tests, including:

1. Control – There are sanctions for a driver declining requests once they are logged into the app, which resulted in a high level of control from Uber. This was found to be consistent with an employment relationship.
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2. Integration – Unlike the Employment Court, the CA didn’t consider the drivers were integrated into the business when they were driving. This was because drivers could choose to log off the app and were not obliged to accept rides.
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3. The Fundamental Test – It was found that drivers were not in business on their own account. Uber unilaterally determines the terms of the driver agreement including performance standards and pricing, and exercises full control over the terms when a driver is logged into the app. They therefore have no opportunity to establish any business goodwill of their own while logged on which was considered “critical”.

After considering all relevant matters under the guidance of Bryson, the CA found the real nature of the relationship was one of employment. The factors in favour of the drivers being employees, outweighed those pointing away from employment (such as the considerations under the Integration test). Uber drivers were not carrying on their own independent transport service businesses.

Supreme Court

By a majority, the Supreme Court confirmed the CA’s interpretation of the test to be taken in determining whether a worker is an employee. Applying Bryson, section 6 is to be interpreted by determining the real nature of the relationship, which involves considering the common law tests of control, integration and the fundamental test.

A slight difference was presented in the Majority’s consideration of the Integration test, stating that "once it is accepted that Uber delivers passenger transport services to riders, drivers must be considered integrated in a more substantive sense. They are the face of Uber’s business, and the relationship between Uber and its drivers is one of co-dependency."

This contrasts with the CA’s view that this wasn’t a strong indicator of employment status.

In all other substantial aspects of applying the section 6 test, the Supreme Court majority agreed with and reinforced the CA's conclusions.

Justice Glazebrook and Justice Ellen France agreed that the drivers were employees but differed from the majority on a couple of points. They considered that the CA was wrong to disregard the parties’ actual common intention at contracting, which they considered was that the drivers were to

be independent contractors. They found the common intention should be a factor (but not determinative). The minority also considered the CA was wrong to limit its analysis to only when drivers were “logged on”. This meant consideration of factors such as freedom to work for others or providing their own equipment was restricted.

Result and Significance

The Supreme Court dismissed the appeal, upholding the CA’s decision.

The CA and Supreme Court decisions are important guidance for employers and business owners in understanding obligations owed to workers.

However, the Employment Relations Amendment Act 2026 aims to better clarify the distinction between employee and contractor by excluding “specified contractors” from the section 6 definition of employee. Specified Contractor is defined in the Act as (among other things) someone who is not restricted from performing work for any other person and who is either able to sub-contract work or is not required to be available to perform work at a specified time, on a specified day or for a minimum period.

For further information on this case or any employment issues, please contact Director Brigitte Morten.