6 Meaning of employee

(1)

In this Act, unless the context otherwise requires, employee

(a)

means any person of any age employed by an employer to do any work for hire or reward under a contract of service; and

(b)

includes—

(i)

a homeworker; or

(ii)

a person intending to work; but

(c)

excludes a volunteer who—

(i)

does not expect to be rewarded for work to be performed as a volunteer; and

(ii)

receives no reward for work performed as a volunteer; and

(d)

excludes, in relation to a film production, any of the following persons:

(i)

a person engaged in film production work as an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer:

(ii)

a person engaged in film production work in any other capacity.

(1A)

However, subsection (1)(d) does not apply if the person is a party to, or covered by, a written employment agreement that provides that the person is an employee.

(2)

In deciding for the purposes of subsection (1)(a) whether a person is employed by another person under a contract of service, the court or the Authority (as the case may be) must determine the real nature of the relationship between them.

(3)

For the purposes of subsection (2), the court or the Authority—

(a)

must consider all relevant matters, including any matters that indicate the intention of the persons; and

(b)

is not to treat as a determining matter any statement by the persons that describes the nature of their relationship.

(4)

Subsections (2) and (3) do not limit or affect the Real Estate Agents Act 2008 or the Sharemilking Agreements Act 1937.

(5)

The court may, on the application of a union, a Labour Inspector, or 1 or more other persons, by order declare whether the person or persons named in the application are—

(a)

employees under this Act; or

(b)

employees or workers within the meaning of any of the Acts specified in section 223(1).

(6)

The court must not make an order under subsection (5) in relation to a person unless—

(a)

the person—

(i)

is the applicant; or

(ii)

has consented in writing to another person applying for the order; and

(b)

the other person who is alleged to be the employer of the person is a party to the application or has an opportunity to be heard on the application.

(7)

In this section,—

film means a cinematograph film, a video recording, and any other material record of visual moving images that is capable of being used for the subsequent display of those images; and includes any part of any film, and any copy or part of a copy of the whole or any part of a film

film production means the production of a film or video game

film production work

(a)

means the following work performed, or services provided, in relation to a film production:

(i)

work performed, or services provided, by an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer (whether as an individual or not):

(ii)

pre-production work or services (whether on the set or off the set):

(iii)

production work or services (whether on the set or off the set):

(iv)

post-production work or services (whether on the set or off the set):

(v)

promotional or advertising work or services (whether on the set or off the set) by a person referred to in subparagraphs (i) to (iv); but

(b)

excludes work performed, or services provided, in respect of the production of any programme intended initially for broadcast on television

video game means any video recording that is designed for use wholly or principally as a game

video recording means any disc, magnetic tape, or solid state recording device containing information by the use of which 1 or more series of visual images may be produced electronically and shown as a moving picture.

Section 6(1)(d): added, on 30 October 2010, by section 4(1) of the Employment Relations (Film Production Work) Amendment Act 2010 (2010 No 120).

Section 6(1A): inserted, on 30 October 2010, by section 4(2) of the Employment Relations (Film Production Work) Amendment Act 2010 (2010 No 120).

Section 6(4): amended, on 16 November 2009, by section 173 of the Real Estate Agents Act 2008 (2008 No 66).

Section 6(7): added, on 30 October 2010, by section 4(3) of the Employment Relations (Film Production Work) Amendment Act 2010 (2010 No 120).