Worker or Independent Contractor – Quick Answer
Being called an independent contractor does not always decide whether you are treated as a worker for compensation purposes. In some matters, the real working arrangement, level of control, duties performed and surrounding circumstances may matter more than the label used in a contract.
If you are injured while working in a non-traditional role, gig economy role, casual arrangement or contractor-style engagement, you may still have rights worth investigating. Early legal advice is important because worker status can be complex and highly fact-specific.
Worker status is not always decided by the wording of a contract. The practical reality of the work relationship can be critical when assessing compensation rights.
What to Do Next Checklist
- Get medical treatment: Create a clear record of the injury and treatment.
- Keep work documents: Save contracts, rosters, messages, payslips and job instructions.
- Record how the work was controlled: Note who directed the work, set hours, provided tools or approved tasks.
- Seek legal advice early: Worker status can be disputed and depends on the facts.
Are you a worker or an independent contractor?
A person may be called an independent contractor but still need a closer legal assessment of their true working relationship.
Why does worker status matter after an injury?
Worker status matters because it can affect whether an injured person can access workers compensation or other legal options.
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.
What factors can influence whether someone is treated as a worker?
Relevant factors may include control, duties, payment arrangements, practical work conditions and the real relationship between the parties.
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.
If you were injured while working, our workers compensation lawyers can review whether your arrangement may give rise to a claim.
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.
What should injured contractors or gig workers do next?
Injured contractors or gig workers should get medical help, keep evidence and seek legal advice before assuming they have no claim.
If you suffer an injury while working and you work in a less traditional role or in a 21st century job such as an Airtasker, Uber Eats driver, or even a reality TV star, we are available to advise you on your options and help you make a claim for any compensation to which you may be entitled.
How can Stacks Goudkamp help?
Stacks Goudkamp can review the circumstances of the injury and advise whether compensation options may be available.
For more information, and to arrange a free, no-obligation assessment of your claim, please contact Stacks Goudkamp on 1800 251 800, or alternatively, make an online enquiry.
Written by Con Ktenas
Con Ktenas is a lawyer in Anna Tavianatos’ Practice Group. Con represents people in a wide variety of matters including workers compensation, public liability claims and sexual abuse claims.
FREQUENTLY ASKED QUESTIONS
Am I a worker or independent contractor for compensation purposes?
The answer depends on the practical working relationship, not only the label used in a contract. Factors such as control, duties, payment and work arrangements may all be relevant.
Can independent contractors claim workers compensation in NSW?
Some people described as contractors may still have compensation options, depending on the circumstances. It is important to get advice before assuming you are excluded.
Does a contract label decide whether someone is a worker?
No. The label in a contract may be relevant, but it does not always decide the issue. The real facts of the working relationship can be more important.
What should I do if I am injured in a gig economy or contractor role?
Seek medical treatment, keep records of the work arrangement and injury, and speak with a personal injury lawyer about whether compensation options may apply.
How can Stacks Goudkamp help with disputed worker status?
Stacks Goudkamp can assess the work arrangement, injury circumstances and available evidence to advise whether a claim may be available.
