Employee or Contractor?
From 21 February 2026, New Zealand introduced a new gateway test to provide greater certainty about whether a worker is an employee or an independent contractor. The change is particularly relevant for businesses that engage contractors who work closely with the business or over an extended period.
The gateway test
A worker is treated as a specified contractor if every gateway criterion is met. The worker must:
- have a written agreement stating that they are an independent contractor or are not an employee;
- be allowed to work for another person, although not at the same time as working under the arrangement;
- be able to choose when they work, or subcontract the work, subject only to limited vetting for matters such as legally required qualifications, role-specific qualifications or criminal history;
- be able to decline additional work without the arrangement ending; and
- have had a reasonable opportunity to obtain independent advice before entering into the agreement.
If all criteria are met, the worker is treated as a contractor for the purposes of the Employment Relations Act 2000.
If the gateway test is not met
Failing the gateway test does not automatically make the worker an employee. Instead, the common law test applies to determine the true nature of the relationship.
The common law assessment considers the arrangement as a whole, including:
- what the parties intended;
- how much control the business exercises and how independently the worker operates;
- how integrated the worker is into the business; and
- whether the worker is genuinely operating a business on their own account.
Why the distinction matters
Employees and contractors have different legal and tax treatment. The written agreement is important, but simply describing someone as a contractor will not be enough if the gateway test is not met and the working relationship indicates otherwise.
- Employees are generally entitled to employment protections, including annual holidays, sick leave and minimum wage requirements.
- Contractors are generally self-employed, invoice for their services and manage their own tax and ACC obligations.
- Contractors are not covered by most employment legislation, although health and safety obligations apply to both employees and contractors.
- An incorrect classification can create unexpected liabilities and disputes for both the business and the worker.
What businesses should review
Businesses using contractors should review both their agreements and the way each arrangement operates in practice. Check whether:
- a current written contractor agreement is in place;
- the agreement accurately reflects the day-to-day working relationship;
- the contractor is genuinely free to work for others;
- the contractor can choose when to work or subcontract the work within the permitted limits;
- the contractor may decline additional work without the arrangement ending;
- the contractor had a reasonable opportunity to obtain independent advice; and
- all gateway criteria are met or, if not, the arrangement is supportable under the common law test.
Existing arrangements
The gateway test is not retrospective. For an arrangement that began before 21 February 2026, the common law test applies to the period before that date. From 21 February 2026, the gateway test can be considered first, with the common law test applying if any gateway criterion is not met.
A timely review
The new rules provide greater certainty, but they do not mean everyone currently described as a contractor will qualify as one. Arrangements warrant particular attention where a contractor works almost exclusively for one business or operates in a similar way to an employee. A focused review of the agreement and actual working practices can identify issues before they become a dispute.











