Contractors and timesheets after the 2026 gateway test: what you can ask for

The gateway test in brief

The Employment Relations Amendment Act 2026 added a new kind of worker to section 6: the specified contractor, who is not an employee. Section 6(7) sets five conditions, and all five must be met. In the Act's words, shortened, the worker (person A) is a specified contractor when:

1. the arrangement includes a written agreement that says they are an independent contractor, or are not an employee;
2. they are "not restricted from performing work for any other person, except while performing work for" you;
3. either they are "not required to perform, or be available to perform, work" for you "at a specified time or on a specified day or for a minimum period", or they are allowed to subcontract the work, with any vetting of the subcontractor limited to what the law requires or, where the work justifies it, a relevant qualification or criminal record check;
4. the arrangement "may not be terminated for the reason that" they decline extra work beyond what they agreed to do; and
5. they "had a reasonable opportunity to seek independent advice before entering into the arrangement".

Employment New Zealand puts it simply: if a worker meets all the criteria, they are a contractor. If any one is missed, the common law test applies, and the worker may still be a contractor under it.

The test is not retrospective. For an arrangement that started before 21 February 2026, Employment New Zealand says the time before that date is judged on the common law test, and the time from it on both tests. An existing arrangement that met the definition on 21 February 2026 is a specified contractor from that day on, unless a case about it had already been brought, even if the Employment Relations Authority later finds the person was an employee before that date.

Why set hours matter

The third part is the one about time. It asks whether you require the worker to work, or be available, at a specified time, on a specified day or for a minimum period. Unless they may subcontract, requiring any of those means the test is not met. Long hours on their own are treated differently: section 6(8) says a worker is not restricted from working for others, under the second part, just because your hours "have the effect of restricting" their ability to do so. A busy contract does not fail the second part, but a set timetable can fail the third.

So how you ask for hours matters. "Can you be on site Monday to Friday, 8am to 4.30pm" reads like a roster. "The fit-out needs finishing by 30 November; invoice us monthly for the hours you put in" agrees a result and a way to bill it. The first tells the worker when to work; the second leaves that to them.

The fourth part matters day to day as well. If you offer extra work and the answer is no, ending the arrangement for that reason fails the test. Keep extra work as an offer, in writing, that can be turned down.

Some work does have to happen at fixed times, such as on a site that is only open certain hours. That is not a reason to avoid contractors, but it is a reason to get advice on how the agreement is written, and to read the subcontracting part closely. Courts and the Authority decide these cases on their facts, so treat this as a guide to the questions, not an answer.

Asking for a record of hours billed

Asking a contractor how many hours they worked is not the same as telling them which hours to work. A contractor who charges by the hour has to tell you how many hours they are charging for, and you are entitled to check an invoice before you pay it.

A reasonable request looks like this: an invoice for each period you agree, showing the dates, the hours or the fee, what the work was, and GST if they are registered, with their own timesheet attached if you want the detail. That is a record of hours billed, made by the contractor, about work already done. It does not set a start time, a finish time or a minimum week.

What changes the picture is control: asking them to clock in and out at your times, to get your approval before working, or to be available for a set window. Employment New Zealand's common law guidance points the same way: set times and days at work, and needing permission to take time off, are marks of an employee; a contractor generally has more say over when and how much they work, and over their own availability.

The contractor's side is easy to keep. Our guide to invoicing as a contractor covers what an invoice should show. A contractor can log their own hours in Your Timesheets at jobtracker.co.nz, which is free on every plan; with the Career and Timesheets plan they can turn billable hours into an invoice, with GST when they are registered, or send you a share link, a read-only timesheet that stays open for 30 days unless they switch it off sooner.

Keeping contractors out of your staff timesheets

A staff time system is built for employees, and that is the problem. It usually carries a roster, a clock-in, a manager who approves the week, and a list of who has not filled in their hours. Each of those is a way of directing when people work and following up when they do not. For an employee, that is ordinary management. For a contractor, it is evidence of the kind of control and integration that points the other way.

There is a record-keeping reason too. Section 130 of the Act requires a wages and time record for each employee, showing the hours worked each day and the pay for them. A contractor is not in it, and mixing their hours into the same system blurs a line you want to be clear.

So keep them apart. Ask contractors for their own record, or an invoice, on the cycle you agreed, and keep those with your accounts payable. Leave them off your staff rosters, out of your team's time approvals and out of any report of who has not logged.

Team timesheets from jobtracker.co.nz is built mainly for your employees. Each person you give a seat to chooses whether to share the hours they log for you, and the Team page shows who has not logged anything this week, which suits staff you employ. A contractor can take a seat too, and shares only the hours they log for you, never their other clients, rates or invoices; if you give one a seat, do not use that list to chase them. It has no roster and no approval step either way.

When the test is not met

Missing the gateway test does not make someone an employee. It means the question goes back to section 6(2): the Authority or the court looks for "the real nature of the relationship". It must consider all relevant matters, including what the parties intended, and it must not treat a label in the contract, such as "independent contractor", as deciding the matter.

Employment New Zealand describes four common law tests used for that: intention, control versus independence, integration into the business, and the economic reality of whether the worker is in business on their own account. No one test gives the answer. A worker who sets their own hours, uses their own tools, carries their own risk and works for several clients may still be a contractor without the gateway test.

Getting it wrong has a cost. Employment New Zealand lists annual holidays, sick leave and the KiwiSaver employer contribution as entitlements a worker may miss out on, and tax and ACC levies they may pay that they should not. In a dispute, the Authority can find that someone was an employee all along, a contractor all along, or an employee until 21 February 2026 and a contractor after it.

If you are unsure about an arrangement, Employment New Zealand on 0800 20 90 20 can talk it through, and a lawyer can look at the agreement itself. If you have contractors on a fixed timetable today, it is worth that call before the question is asked for you.

Team timesheets is built for your staff