The on-going Uber Dispute: The ball is now in the Supreme Court… or is it?

How the Uber case and a proposed ‘gateway test’ could reshape contractor law

This article follows our earlier update on the Court of Appeal’s ruling that four Uber drivers were employees.  You can read more in our previous article.

Earlier this month, the Supreme Court – New Zealand’s highest court – heard Uber’s appeal against the Court of Appeal’s earlier ruling that four of its drivers were employees.

The hearing took place over two days, with the argument for Uber primarily focused on the drivers’ freedom and flexibility and the intent of the parties, and the argument for the drivers primarily focussed on the level of control exercised by Uber while the drivers are logged in to the Uber app.

The Supreme Court’s judgment is likely some months away, but irrespective of the outcome, its influence on the ‘gig economy’ in New Zealand may be short-lived.

Could new legislation override the Supreme Court’s Uber decision?

While ordinarily a Supreme Court decision sets the course of the law, as it binds all other courts below it, the Supreme Court’s ruling in the Uber case may be superseded by Parliament.

On 15 July 2025, the Employment Relations Amendment Bill (“Bill”) passed its first reading. If passed into law, the Bill would introduce a ‘gateway test’ to determining a worker’s status as a contractor or employee.

What is the proposed ‘gateway test’ for contractor vs employee status?

Under the proposed new gateway test, a worker would be deemed a contractor if all of the following criteria were met:

• The arrangement between the worker and the principal is documented in a written agreement which specifies that the worker is an independent contractor; and
• The worker is not restricted from performing work for any other person, except while performing work for the principal; and
• Either:
  • The worker is not required to perform, or be available to perform, work for the principal at a specified time or on a specified day or for a minimum period; or
  • The worker is allowed to sub-contract the work for the principal to another person (who may be required to undergo vetting by the principal to ensure compliance with any relevant statutory requirements before being sub-contracted by the worker); and
• The arrangement does not terminate if the worker declines any work offered to them by the principal that is additional to the work that the worker agreed to perform under the arrangement; and
• The worker had a reasonable opportunity to seek independent advice before entering into the arrangement.

However, this proposed new test may be altered or refined as the Bill passes through the next stages of the legislative process.

If passed, the gateway test is expected to provide workers and businesses with more certainty, so they can contract more freely knowing where they stand.

In the event one or more of the criteria were not met, then the existing test would continue to apply, which considers the “real nature” of the relationship between the parties by applying the following tests, taking into account all relevant matters, including the intention of the parties and how the relationship operates in practice:

• The control test (to what extent does the principal control the worker?);
• The integration test (to what extent is the worker integrated into the principal’s business?); and
• The fundamental test (is the worker carrying on their own, independent, business?);

What’s next for the gig economy in New Zealand?

The status quo remains while we await the Supreme Court decision and the passing of the gateway test into law. If you require specific advice or assistance in this space, or would like to find out more, get in touch with our team.