December 2019

In this edition:

We enjoyed again welcoming delegates to the Annual COAT NSW Conference on Friday 6 September 2019. Please see below more details of the lecture and some snaps of the attendees.


Planning for 2020 is already underway, with Justice Virginia Bell agreeing to give next year’s Whitmore Lecture.  The Committee is also exploring other ways in which COAT NSW can offer additional benefits to its members.


So until next year, wishing you all a wonderful, safe and festive season.

Anina Johnson
COAT Convenor

2019 COAT NSW Conference

Over 130 delegates, attended the COAT NSW Conference on 6 September 2019 held at the Pullman Hotel.  The theme of the Conference, ‘the future is now – traditional skills and new technologies’, focused on traditional skills sets of Tribunal members including fact finding face to face engagement and therapeutic jurisprudence and involved a great mix of plenary and concurrent sessions.

The Conference also explored the impact of digital trends on the work of Tribunals, both now and in the immediate future.

Feedback from conference attendees was very positive and the conference organising committee did a great job in developing the program and sourcing a great venue.

2019 Coat NSW Conference

COAT NSW committee update

In November this year Susan Johnston, NCAT member, resigned from the NSW COAT committee.

Susan has been a stalwart of the committee for a number of years and will be greatly missed by the Committee. 
We wish Susan all the best for the future.

In accordance with Clause 15(1) of the COAT Constitution, in the event of a casual vacancy occurring in the membership of the committee, the committee may appoint a member of the Chapter to fill the vacancy and the member so appointed is to hold office until the conclusion of the annual general meeting next following the date of the appointment.

Chris Matthies, Executive Director, Strategy & Policy at the AAT, was invited to join the committee and gladly accepted his appointment.

As many of you know Chris is a member of the NSW COAT conference organising committee.

Recent significant case

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]).

2020 Whitmore Lecture

Mark your diaries.  COAT NSW is delighted that in 2020, Justice Virginia Bell has agreed to give the Whitmore Lecture.  The Lecture will be held on 6 May. Invitations will be sent out to members closer to the date.


2020 COAT National Conference

The 2020 COAT National conference will be held in Adelaide on Thursday 4 and Friday 5 June 2020.  Further details will be available as confirmed.


Council of Australasian Tribunals NSW Chapter Inc (COAT NSW)
ABN 85 266 469 622
Ph: 0418 281 116
PO Box 268, Darlinghurst NSW 1300

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