The clamps have been put on ACC to reinforce the basis of its protest against a decision declining the right to lift the levies of companies that sold timber to tradies.

Employers are required to be classified, by the government agency, in the industry or risk class that most accurately represents the business’ primary purpose to address the injury potential it posed.

In 2019 ACC reclassified three timber and hardware stores selling products to the public as well as to tradesmen, to “timber wholesalers”.

The change resulted in increased costs for Building Connexion Ltd and Southern Lakes Building Ltd, previously coded as “Hardware Goods Wholesalers”, and Anderson & O’Leary Ltd “Hardware and Building Supplies Retailing”.

As the new category was deemed more dangerous it attracted higher levies than the previous classifications.

Reconsideration of the reclassification was sought by all three and the process proved successful with the decisions relating to Southern Lakes Building and Building Connexion set aside, and modifications made to the Anderson & O’Leary determination.

ACC's decision to lift the levies on three building supply companies, because they sold timber to tradies, has resulted in an ongoing legal battle. Photo / Sylvie Whinray

ACC appealed the decisions set aside, in the District Court, while Anderson & O’Leary also challenged the changes.

The court, however, ruled the appropriate classification for each of the businesses was – “Hardware and Building Supplies Retailing”.

Undeterred, ACC launched a further appeal arguing the sale of timber to trade customers constituted an “activity” in its own right and therefore the companies needed to be coded according to the activity attracting the highest levy – “Timber Wholesaling”.

Justice Graham Lang, in the High Court, again rejected ACC’s appeal, ruling the section it relied on to make the determination only applied when an enterprise operated two separately identifiable businesses, each carrying out a separate and distinct activity.

He ruled the respondents didn’t fit the definition as they each sold a wide range of different products within and around the same premises.

“Customers had the same ability to view and purchase all products regardless of whether they were members of the public or engaged in trade.

“The only difference in the way they were treated was the price they paid at the point of sale.”

Justice Lang concluded after considering all the submissions the classification with the best fit was “Hardware and Building Supplies Retailing”.

ACC applied to have the Court of Appeal consider whether the High Court’s interpretation of the law was correct.

After its application was approved, ACC attempted to amplify its argument by amending the appeal to include additional questions of law.

In its judgment released yesterday the Court of Appeal ruled there was no need to alter the appeal.

ACC could query whether the court’s approach defeated the purpose of the section when it addressed the question of law on which the appeal had been granted, the decision said.

The Court of Appeal could ultimately decide the appropriate answer and correct classification at a hearing in Wellington in July.