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