Why the label barely matters for health and safety — but matters a lot for employment law
Under the HSWA, the worker-or-contractor label hardly matters: a worker is defined broadly in section 19 to include contractors, subcontractors, labour-hire staff, trainees and volunteers, and you owe them all the primary duty of care. You cannot contract out of a health and safety duty by calling someone a contractor. For employment law — pay, leave, tax and ACC — the distinction matters a great deal, and since 21 February 2026 a new gateway test helps decide it.
People often blur two separate questions. The first is a health and safety question: is this person a worker I owe duties to? The second is an employment law question: are they an employee or an independent contractor? They have different answers and different tests, and getting them mixed up is where businesses come unstuck.
Section 19 of the HSWA defines a worker very broadly. It includes employees; employees of contractors and subcontractors; contractors and subcontractors themselves; labour-hire staff assigned to your business; outworkers and homeworkers; apprentices and trainees; people on work experience or a work trial; and volunteer workers. A PCBU who is an individual carrying out the work is also a worker.
So the practical answer is simple: you owe the primary duty of care to everyone who works for you, whatever you call them. And that duty cannot be transferred or contracted out — you can make reasonable arrangements about who does what, but you remain responsible. See what a PCBU is.
A contractor is usually a PCBU in their own right, so you and the contractor often hold the same duty toward the same workers or work. That means you share the duty and must consult, co-operate and co-ordinate — the 3 Cs. Treating someone as a contractor does not remove your duty; it adds a second duty holder to coordinate with. See contractor & subcontractor management.
Employment status is a different question, and it matters for minimum wage, leave, KiwiSaver, PAYE and ACC levies, and access to personal grievances. Since 21 February 2026, the Employment Relations Amendment Act 2026 has applied a gateway test to workers engaged in their personal capacity. If the arrangement meets all of the written-contract criteria — broadly, a written agreement stating the person is an independent contractor, freedom to work for others, freedom to choose when to work or to subcontract, and no requirement to be available at set times — the worker is a “specified contractor” and is not an employee.
If the arrangement does not meet all the criteria, the Employment Relations Authority or the courts apply the common-law test that looks at the real nature of the relationship: intention, control, integration, and economic reality. The gateway test is not retrospective. Misclassifying an employee as a contractor can lead to back-pay of wages and leave and other costs. This is employment law rather than health and safety — for detail, see Employment New Zealand, and get advice if you are unsure.
Section 19 includes volunteer workers, with some exclusions — for example, certain activities such as helping with an educational institution's activities outside its premises, or providing care in the volunteer's own home. A volunteer association with no employees is not a PCBU at all. Casual volunteers and other people at a workplace still have their own duty to take reasonable care for themselves and others.
Don't rely on a “contractor” label to reduce your health and safety duties — you owe them to all workers regardless. Do get the employment classification right for pay, leave and tax. And manage the shared duties you hold with any contractor business through the 3 Cs.
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Not much. Section 19 of the HSWA defines a worker broadly to include contractors, subcontractors, labour-hire staff, trainees and volunteers, and you owe them all the primary duty of care.
No. Health and safety duties cannot be transferred or contracted out. Engaging a contractor adds a second duty holder to coordinate with under the 3 Cs — it does not remove your own duty.
It is an employment-law test in force from 21 February 2026. If a worker engaged in their personal capacity meets all the written-contract criteria, they are a specified contractor and not an employee. If they do not, the common-law real-nature-of-the-relationship test applies.
Volunteer workers are included in the definition of a worker, with some exclusions for specific activities. Casual volunteers and others at a workplace also have their own duty to take reasonable care. A volunteer association with no employees is not a PCBU.
No. Employment status decides pay, leave, tax and grievance rights and uses the gateway and common-law tests. Health and safety simply asks whether the person is a worker you owe duties to — and the answer is almost always yes.
