Prince v Seven Network (Operations) Limited [2019] NSWWCC 313 25 September 2019 C Burge, Arbitrator
Many thanks to Justice Armstrong’s Chambers (President, NCAT) who prepared the following case summary).
Decision of the Workers Compensation Commission
This decision is significant because of its finding that a reality show contestant may be considered an “employee” of a network for the purposes of the WC Act.
In brief: The Workers Compensation Commission (the Commission) decided in favour of the applicant, finding that, as a contestant on the respondent’s reality television show “House Rules”, the applicant was a worker employed by the respondent within the meaning of s 4 of the Workers Compensation Act 1987 (NSW) (the WC Act). Accordingly, the Commission ordered the respondent to pay the applicant’s reasonably necessary medical and treatment expenses, pursuant to ss 9 and 60 of the WC Act, arising from the psychological/psychiatric injury suffered by the applicant in the course of her employment.
The Commission rejected the respondent’s submissions that no service was provided by the applicant to the respondent ([93]). The contract between the parties required the applicant to engage in home renovations, which were the basis of the respondent’s television program. Further, the applicant was required to give up her time and her previous job, and to relocate for the course of filming, while the respondent clearly “derived benefit from the applicant giving her time and engaging in the home renovations for the show” ([95]). Having decided that the applicant provided a service to the respondent, the Commissioner further found that the relationship between the applicant and the respondent was one of “employee” and “employer” – that is, the applicant was not an “independent contractor”, carrying on a business of her own under a contract of services ([96], [112],
[116]-[119]). The Commissioner accepted that the “principal criterion” in making such a distinction remains the employer’s “right of control of the person engaged”, however, it noted this is not the sole determinant ([102]). In recent times, courts have favoured consideration of a variety of criteria including, amongst other things, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the deduction of income tax, the right to delegate work, the right to dictate hours and place of work, and the right to exclusive services of the person engaged (Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986 160 CLR 16, cited at [103]). It is important to remember that it is the “totality” of the relationship that must be considered – these factors are merely a guide ([107], [112]). In this case, the Commission accepted the
applicant’s submissions that the respondent had a great deal of control over the applicant’s activities whilst engaged on the show ([115]). Overall, the Commission found the “relevant indicia” to be “overwhelmingly in favour of the relationship giving rise to the applicant being a worker” ([119]).
In particular, the Commissioner set out the following factors as being indicative of an employment relationship between the parties ([117]): 10 October 2019
(a) The rate of remuneration was set by the respondent;
(b) The applicant was an integral part of the show and essential to the product and business in which the respondent was engaged;
(c) The respondent had exclusive use of the applicant for every hour of every day during which the show was being filmed;
(d) The respondent had the power to veto the applicant wearing certain clothes, and she was unable to wear any items which displayed business or brand names;
(e) The rules of the show provided the applicant was a public face of the respondent’s business;
(f) The respondent paid the applicant an allowance for her weekly expenses;
(g) The applicant took no risk as an entrepreneur in the running of her own business. Rather, she was paid a weekly rate set by the respondent;
(h) The activity carried out by the applicant (and the other contestants) was for the benefit of the respondent’s business, rather than any enterprise of her own;
(i) The applicant commenced and completed tasks when directed by the respondent;
(j) The respondent provided tools and materials for the applicant to use;
(k) The applicant employed no one else to carry out the work for them, and to the extent she retained tradespeople, they were approved by the respondent and the cost of them was taken from a budget allocated to the applicant by the respondent.
The Commissioner acknowledged that the respondent did not withhold income tax, and the applicant was not entitled to annual leave, sick leave or superannuation, however, these factors were not determinative ([118]).
Having found an employment relationship between the applicant and respondent, the Commission found that the applicant suffered a psychological/psychiatric injury through actions of the respondent in the course of that relationship. These included the respondent editing the footage on the reality show to portray the applicant in a negative light ([122]), failing to moderate the content and comments of its social media platforms ([123]-[124]), and facilitating an environment in which there was a “breakdown of relationships” between the applicant and other contestants ([127]-[128]). The fact that each of these factors arose out of or in the course of the employment relationship satisfied the Commission that, on the balance of probabilities, the applicant’s employment with the respondent was the main contributing factor to the applicant’s injury ([128]).
