Even the government’s law changes to try and make it harder for workers to challenge their employment status as “independent contractors” is unlikely to have made any change to the outcome of the Employment Court decision which declared that five dancers at Calendar Girls were employees.
In 2023 it was reported that nineteen dancers working at Wellington's Calendar Girls were told not to come back to work by a Facebook post after requesting better work contracts. In response, about 35 dancers from the Club decided to bargain collectively. The dancers asked Calendar Girls management for two things; clear income records and a 60 percent cut of their earnings. The dancers sent an email asking for changes. They say that the next day over half of them were told by the owner of Calendar Girls in a Facebook group post to "clear out their lockers".
The dancers formed a group called the Fired Up Stilettos seeking improved industry standards and better independent contractor protection. They say that, nationwide, dancer contracts are predatory by nature and are riddled with fines, retainer bonds, clauses forbidding work at competing venues and media engagement.
The dancers have said that although they are treated as employees, as independent contractors they lack the employment protections of the Employment Relations Act. Five dancers from Calendar Girls took their case to the Employment Court to seek a declaration that they were in fact employees, not contractors.
The dispute arose because Calendar Girls proposed changes to the dancers working conditions, including increasing the prices charged for services while reducing the percentage paid to dancers, increasing certain fines, and requiring dancers to purchase branded tracksuits.
In the Employment Court, Judge King, declared that the dancers were employees.
The contractual arrangements indicated that the dancers understood they were engaged as independent contractors, but their written contracts imposed extensive obligations. Dancers were required to follow the Club's policies, comply with management instructions, work according to rosters, prioritise the Club's requirements over other business commitments, and obtain approval for absences. They were also restricted from working for competing businesses without permission. Dancers were not guaranteed earnings for their time at the Club and could be subjected to substantial deductions described as fines for breaches of its rules. Judge King found that the contractual label did not reflect the actual nature of the relationship. She then went on to analyse the usual common law tests to determine their status.
Using the “control test” the Judge considered that the Club exercised substantial control over virtually every aspect of the dancers' work. It controlled their shifts, breaks and departure times, appearance, clothing, stage performances, music, services offered and prices charged. Management also directed how dancers approached customers and performed lap dances, and could reprimand or penalise dancers who failed to comply.
Although the dancers had personal boundaries and were legally entitled to refuse commercial sexual services, the threat of fines, reduced work opportunities, lost income or termination significantly constrained their practical freedom to refuse particular services.
Using the “integration test” the Judge considered that the dancers were central to Club’s business. They provided the entertainment that attracted customers, featured in its advertising and generated revenue through performances and other services. The Club's reliance on dancers was demonstrated when it brought dancers from Auckland to Wellington after terminating the claimants’ engagements. The dancers were integrated into the Club’s business rather than operating as independent businesses supplying services to it.
The Judge also determined that the dancers had little genuine commercial independence. The Club controlled prices, restricted competition and retained the benefit of the business's goodwill. Although dancers supplied their own clothing and equipment and some managed their own tax and ACC arrangements, these factors did not outweigh the control exercised over their work by the Club.
The Judge then considered industry practice but found the evidence too limited to assist materially in determining employment status of the dancers.
When the Supreme Court found that Uber drivers were employees and not contractors, Workplace Relations and Safety Minister Brooke van Velden said at the time that she respected the court ruling but she said it highlighted a “grey area in employment and contract law” and that her law changes would address this. It does no such thing. All the courts that Uber has litigated this issue in have conclusively found that the Uber drivers are employees using the current and well established common law tests. The same outcome has been easily determined in the Calendar Girls case. Read more
It seems that small business owners are being promised another dose of employment law reform if the National Party are re-elected in November 2026, and the National Party does not trade away its policies in negotiating a coalition government.
National's recently announced 47-point Small Business Plan (yes count them, in a plan proposing to reduce complexity and compliance costs) is aimed at reducing compliance costs and promising to make it easier for small businesses to invest, grow and employ people. That is an attractive proposition, particularly for the thousands of small businesses where the owner is also the manager, accountant, IT person, HR department, and compliance manager.
After several years of substantial changes to New Zealand's employment laws, do small businesses really need more changes to deal with? And why create even more confusion over employment rights and processes for businesses?
Trial periods have been a political football for many years now, switching between all businesses and small businesses (less than 20 employees, which in effect meant that those small businesses needed to check their head count – how many full-timers, part-timers/casuals on the books).
The National Party says small businesses make up around 97 per cent of New Zealand enterprises and employ approximately 680,000 people. So what are some of those plans?
Point 7 - Develop a fast-track for suitable employment disputes, through a simplified Employment Relations Authority pathway, with clear eligibility, proportionate procedures, firm decision timeframes and fair-hearing standards.
Those working in this space know that both employers and employees would love to have a speedy, simplified system for most cases. When the current system was implemented 26 years ago it offered the promise of a “quick and dirty” resolution process. Unfortunately, it has never lived up to this promise - it is neither quick and it certainly is bogged down in procedure. Like all justice processes in New Zealand, it simply needs resourcing and funding to enable this to happen.
Point 8 – Make better use of mediation to resolve minor disputes early, including requiring mediator recommendations and available binding options to be clearly explained and offered in suitable cases.
Those working in this space know that both employers and employees would love for this to be promoted. Two key objectives are already set out in the Employment Relations Act and clearly provide that:
· mediation is the primary problem-solving mechanism; and that
· the objective is to reduce the need for judicial intervention.
Again, the mediation process simply requires more funding and resourcing. Every communication with the Employment Relations Authority or Mediation Services (which is run by the Ministry of Business, Innovation and Employment) comes with a warning of prolonged delays.
The big question is why limit it to “small business operators” and create a further complication in the system?
One of the strongest messages coming from the business community in recent years has been the need for stability and certainty in employment law. In July, the Employers and Manufacturers Association head of advocacy Alan McDonald made the point particularly clearly. In setting out the EMA's election priorities, he said reforms in areas including employment law needed time to “settle and stick”.
Retail NZ has previously made an even more explicit connection between frequent employment-law changes and the problems faced by employers. It has said retailers need “stable, predictable employment laws” that are easy for business owners to navigate and comply with. It has also warned that the complexity of, and frequent changes to, employment legislation create uncertainty and costs for recruitment.
BusinessNZ has made a similar argument. Its recent survey work found that 47.1 per cent of businesses surveyed said regulatory changes over the previous three years had increased their cost of doing business. BusinessNZ chief executive Katherine Rich has also repeatedly argued for greater policy certainty for businesses.
The Employment Relations Act was amended substantially in 2026 creating so many legal questions that will take years to work through the system to provide employers with some certainty. The Holidays Act has also been replaced by the new Employment Leave Act after years of debate and uncertainty. No doubt this new system will be litigated for years before questions are resolved.
Every change has a cost. Employment agreements have to be reviewed. Payroll systems need to be changed. Managers need to understand new obligations. Staff need to be informed. Policies and procedures have to be rewritten. Sometimes lawyers and consultants need to be engaged.
Is it not in New Zealand’s best interests to have settled, well understood employment laws that employers and employees can navigate swiftly and without unnecessary complication? Providing adequate resourcing funding to a well-established and understood dispute resolution system will provide the productivity gains that political parties love talking about, but unfortunately provide very few answers to. Read more.....
Reflecting on the current government’s track record on employment matters over the past term, it appears that the “tail has truly wagged the dog”. The ACT Party has decimated long established employment laws that have been largely been settled and agreed to for many years by both the two main parties, the National Party and the Labour Party.
National came to power on a platform of Blame, Blame, Blame and tiny tax cuts that are costing $14.6 billion over four years. “Our plan is carefully targeted to ensure that those who will benefit the most are working New Zealanders. It’s about time they got some relief from Labour’s cost-of-living crisis and National will deliver that to them”, Mr Luxon said.
The following budget, the government clawed back some of these tax cut costs with its retrograde steps to addressing pay equity issues that had previously been agreed to between the Labour Party and the National Party. The cost to addressing those inequities was significant. The previous budget had allocated some $17 billion over four years, suggesting that in the government funded sector the costs of settling pay equity claims could be considerable. The Prime Minister has admitted that those changes to pay equity laws are going to save the government “billions of dollars”, he now says that this was not the motivation for changing the legislation. David Seymour, the Deputy Prime Minister, was more forthright at the time - "I actually think that Brooke van Velden has saved the taxpayer billions”.
The ACT party has put the minimum wage firmly on the election agenda with a proposal to freeze the adult minimum wage at $23.95 an hour for three years and introduce a new training wage for workers under 20 at 60 per cent of the adult rate for their first 12 months with an employer. At today’s rate, that would be $14.37 an hour.
The proposal is based on ACT’s argument that mandated wage increases have outpaced productivity and that lower employment costs will encourage businesses to employ more people, particularly young people. The party says higher wages ultimately depend upon businesses becoming more productive and profitable.
There is an obvious counterargument. The minimum wage is intended to establish a floor below which employees cannot be paid. As the Employment Court has previously observed, the Minimum Wage Act is of fundamental importance because it is directed at preventing exploitation and recognises the diminished bargaining power of those in low-paid employment. What ACT is proposing most effects those minimum wage earners working multiple, often part-time jobs, to just pay their bills, to feed their families, to pay the rent. For ACT there would no longer be a “fair days pay for a fair days work”.
The current adult minimum wage of $23.95 was introduced in April this year, an increase of 45 cents an hour. The government's own policy analysis acknowledged the difficult balance between protecting the incomes of low-paid workers and minimising possible employment effects. That balance is lost when inflation is considered. The minimum wage has increased by about 5.5 per cent since 2023, while consumer prices increased by 15.5 per cent over the three years to March 2026. Since then, annual inflation has risen further, reaching 4.1 per cent in the June 2026 quarter.
A three-year freeze on the minimum wage the way inflation and prices continue to rise would increase the negative impact inflation has on those minimum wage workers. If prices continue to rise, the real value of the minimum wage will continue to fall. ACT's argument is that the trade-off may be greater employment opportunities, particularly for people currently struggling to get into the labour market. Under this government the unemployment rate has climbed to 5.6% in the three months to June — the highest in 11 years since September 2015.
While the ACT Party is only a minor party sitting on the so-called “right” wing of politics it certainly has not been a minor party in this government on employment matters. The CEO/Poobah of the National Party, Prime Minister Christopher Luxon, has not been very effective in negotiating and constraining the ACT Party on numerous contentious and divisive issues; employment law and treaty issues spring to mind. Should this current government be re-elected the cost of living appears set to be even more unmanageable for our most vulnerable workers on the minimum wage (or those close to it).
Employment rights may often be human rights. They are always human rights in a literal sense. There is a human involved, often with a family or dependents that may be reliant on them. Or the human is reliant on that worker for their support, providing them with the basics - a home, with food, hopefully affordable health care and an education. Those basics seem likely to become even more unaffordable if ACT has its way. As Nelson Mandela said "A nation should not be judged by how it treats its highest citizens, but its lowest ones." Read more...
