Six months on from the gateway test: what's actually changed

Back in February, the Employment Relations Amendment Act 2026 landed with a fair bit of noise. Every law firm in the country put out a summary within a fortnight, most of them saying the same thing: review your contractor agreements, get advice, don't panic.

Six months on, the noise has died down and the contracts have been written. So it's worth asking a different question. Not "what does the law say", but "what has it actually changed on the ground".

A quick recap

From 21 February 2026, New Zealand has a new category of worker: the specified contractor. If an arrangement ticks all five boxes, the worker is a contractor and can't turn around later and claim they were really an employee.

The five criteria, in plain terms:

1. There's a written agreement saying the person is an independent contractor (or is not an employee).

2. They're free to work for other businesses, including competitors.

3. Either they're not required to be available at set times or days, or they can subcontract the work.

4. The arrangement doesn't end just because they decline additional work outside what was agreed.

5. They had a reasonable chance to get independent advice before signing.

Miss one, and you're back to the old common law test, where a court or the Authority looks at the real nature of the relationship: control, integration, intention, and whether the person is genuinely in business on their own account.

Two things people keep getting wrong. It isn't retrospective, so anything before 21 February is judged the old way. And failing the gateway test doesn't make someone an employee. It just means the harder, slower question is back on the table.

The criterion that keeps catching people

If you engage day-rate technology contractors, criterion three is the one to look at.

A typical enterprise contracting arrangement in this market goes something like: 40 hours a week, on site Tuesday to Thursday, aligned to the delivery team's sprint cadence, no substitutes. That's a perfectly sensible commercial arrangement. It's also, read literally, a requirement to be available at set times with no right to subcontract. Which is exactly what criterion three is designed to flag.

The way out is the "or". If the contractor genuinely can send a suitably qualified substitute, subject to reasonable vetting, the criterion is satisfied even with fixed hours. But most agreements we see don't say that, because nobody wanted a substitute turning up on a security-cleared programme. So the clause was never drafted.

Worth being clear about what this doesn't mean. Working full-time hours for one principal isn't by itself a restriction on working for others, so it doesn't automatically knock out criterion two. The two get conflated a lot.

What we're seeing across the desk

Here's the honest answer after six months: for clients, almost nothing has changed.

Our client agreements haven't needed to change in substance. Two large multinationals raised questions, and one contractor's terms were reworded as a result. Beyond that, no pushback worth reporting.

We haven't seen a single role move from contract to fixed-term because the paperwork got easier. Fixed-term decisions are driven by budget and market conditions, the same as they were in January. Employment law settings don't move that dial.

Preferred supplier panels haven't changed how they handle contractor paperwork either. Most panel managers we deal with aren't aware the test exists.

And we didn't retrospectively rewrite existing agreements, because the test isn't retrospective. Contracts signed before 21 February are judged on the old law regardless of what we do to them now.

The pushback came from an unexpected direction

The interesting friction hasn't come from clients or panels. It's come from contractors.

Specifically, from the absence of "you will work 40 hours per week" in the agreement. Contractors read a fixed-hours clause as certainty about income, and its removal as a hedge, or worse, as the agency being cute with the paperwork.

It's the opposite. That clause is one of the things most likely to knock an arrangement outside the gateway test, which is the protection the contractor is relying on.

There's a bigger idea underneath it, and it's one worth saying out loud. You are being engaged as an expert. The commercial deal is that you apply your expertise to deliver a defined piece of work, within the constraints of the project and the people around you. How you get there is substantially yours to determine. That has always been what separates a contractor from an employee, and the gateway test has simply written it into the statute. The framework has caught up with what the relationship was supposed to be.

For a lot of long-term contractors who've spent years on rolling engagements inside one organisation, that distinction has quietly eroded. This is a reasonable moment to pick it back up.

What it means if you're hiring

If you engage contractors directly, the practical checklist hasn't really changed since February, but the urgency has. Six months of new agreements have now been signed. If your template wasn't updated, you've got half a year of contracts sitting on the old wording.

Two things worth remembering. The contract is only half of it, because how the relationship works day to day still matters if you end up back on the common law test. And the "reasonable opportunity to seek advice" criterion is easy to satisfy and easy to forget: it usually just means giving someone more than an afternoon to sign, and saying so in the agreement.

What it means if you're contracting

The test cuts both ways. It gives you certainty about your status, but that certainty runs in the direction of "you are a contractor and cannot argue otherwise later". If you were relying on the ambiguity as a safety net, it's gone.

Read the agreement before you sign it. Check what it says about working for others, about hours, and about declining extra work. If something looks off, the time to raise it is before signing, not eighteen months in.

The honest summary

Six months in, the gateway test has been a much smaller event than February suggested it would be. Clients have absorbed it without comment, panels haven't registered it, and the shape of the contracting market is unchanged. Day rates and demand are driven by budgets and programme pipelines, not by employment law.

The one real effect has been to force a conversation that was overdue anyway: what a contractor actually is, and why the flexibility in the agreement is the point rather than a loophole.

That's a better outcome than most legislation manages.

This piece is general commentary based on our experience placing contractors across New Zealand. It isn't legal advice. If you're reviewing your own agreements, get proper advice on them.