Worker or Independent Contractor

Are you a ‘worker’ or an independent contractor? The reality of employment for a reality TV star – Con Ktenas discusses it is not what you are called that is important but what you do that will determine your employment for the purposes of workers compensation legislation.

Traditionally what most of us understand when we talk about ‘workers’ and ‘employees’ is people who leave home and go to work in an office or a shop or a factory. They have contracts of employment or terms of engagement and are paid a salary and may accrue entitlements such as annual or sick leave. In more recent times the work people do has changed. This is in part due to changes in technology, changes in the way we live and the changes in the products we use and consume. Fifty years ago you may have worked as a photographic developer for Kodak. Fifty years ago you would not have had a job as a website designer.

In recent times, what has also changed is the way people work. This is primarily due to the rise of the ‘digital economy’ and the move away from full-time, permanent employees towards casual, project based work. More and more workers are working as independent contractors and this may have consequences for their rights and entitlements if they are injured while working.

Recently we assisted a reality TV contestant obtain substantial compensation for psychological injuries she sustained after being bullied and harassed on the Channel 7 programme “House Rules”.

We succeeded in establishing that our client was a ‘worker’ within the meeting of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) despite the fact that the contract she had entered into with Channel 7 included a clause that said ‘your participation in the program is not employment, does not create an employer/employee relationship between Seven’.

Under section 4 of the Act, ‘worker’ means ‘a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing)’. There are several exclusions and a schedule to the Act which explains how some categories of people can be ‘deemed’ as workers. Whether you are a worker or independent contractor, needless to say is a rather complex area of the law.

If it was established that the TV contestant was indeed a contractor she would not have been entitled to compensation because only ‘workers’ are entitled to workers compensation for their employment related injuries. We argued successfully that the TV contestant was entitled to compensation since Channel 7 could regulate the way in which she performed all her duties on the show, including what she was allowed to do and when and a long list of what she was not allowed to do.

The case is important because the decision-maker made it clear that it does not matter how you are described in any employment related or contractual documents, but it is the facts and circumstances surrounding the work you do and in particular whether you are controlled by someone in the way you perform your work that determine the reality of your status as a worker or not.