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A Duck by Any Other Name: The Ever Present Question as to Employee Classification

Any litigation lawyer has had to explain to a client at some point in their career why that very expensive contract they had drawn up saying that Joe Bloggs is a contractor and not an employee doesn’t get them out of that unfair dismissal claim.  Most lawyers have their favourite go to in that situation, whether it be Issacs J ‘disregarding the parties’ labels’ in Curtis v Perth and Freemantle Bottle Exchange Co Ltd (1914) 18 CLR 17, the plurality’s consternation over who actually owns a bicycle in Hollis v Vabu Pty Ltd (2001) 207 CLR 21, Gray J’s duck-masked roosters in Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179, or, my personal favourite, Shakespeare’s rose by another name.

A more troubling and contemporary question, however, has arisen: when is a TV reality show contestant an employee?

Arbitrator Burge of the Workers Compensation Commission of New South Wales recently had to consider that question.

The Current State of Play

These issues are hardly new – one of the earlier statements is that of Issacs J (referred to above) in Curtis, where his Honour noted “many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance”.

The principle was more memorably stated by Gray J in Re Porter (above), where his Honour was clear that “the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck”.

This was echoed by the High Court in Hollis (again, referred to above), who held the key consideration was the substance of what the contract provided for within “the totality of the relationship”.

Bromberg J has provided, perhaps, the most authoritative collection of the authorities on this point in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366, where his Honour reframed the question as a two-stage test: first, is there a business?, and second, whose business is the activity being performed in and for?  Paragraphs [217] & [218] of his Honour’s judgment are well worth reading as to the various indicia within each question.

House Rules

All that came to be considered by the Arbitrator in Prince v Seven Network (Operations) Ltd [2019] NSWWCC 313.

Ms Prince was a contestant in the 2017 series of Seven’s renovation competition, House Rules.  She was paid a weekly fee for the times that she was shooting the competition, and received pro-rata’d payments for ad hoc shoots (biographical compilations, the grand finale, etc).  She was exclusively engaged in the competition for a period of time, and was obliged to do as she was told by producers (including what to wear and what to say).  She had to do the work on the renovations herself, and to the extent that tradespersons were engaged, the cost of that was taken from the putative budget that Seven allocated to her renovations for that week.  Seven provided the tools for the works.  The contract she signed was clear, however – she was not an employee; she was a contestant.

It became apparent that the producers were setting Ms Prince and her friend, Ms Taylor, up to be the season’s villains, and actively drove a wedge between Ms Prince and the other contestants.  This caused altercations (in one instance, physically) with the other contestants, and exposed Ms Prince to vitriolic abuse on social media.  Ms Prince alleged that Seven, in undertaking this, caused her a psychological injury.

Seven’s insurer denied liability, maintaining that Ms Prince was not an employee.

The Arbitrator found that Ms Prince was an employee whilst she was competing in the contest, and was entitled to relief for her injury.  He held:

  1. In my view, having regard to the relevant factors set forth in the authorities discussed above, the relationship between the applicant and respondent is appropriately categorised as that of employee and employer.

  2. In reaching this finding, I note the following:

(a) The rate of remuneration was set by the respondent;

(b) The applicant was an integral part of the show and essential to the very 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, paid on a pro rata basis;

(g) The applicant took no risk as an entrepreneur in the running of her own business. Rather, she was paid a weekly rate which was set by the respondent;

(h) The activity being carried out by the applicant (and Ms Taylor and the other contestants) was done for the benefit of the respondent’s business, rather than any enterprise of her own. Any goodwill arising from that activity vested in the respondent’s enterprise, rather than in the applicant;

(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.

Take Aways

As can be seen from the above, if there is one thing that almost never comes into play in these matters is the actual semantics – whether you call your employees exactly that (an employee), a contractor, a duck or even a rose (although we would probably recommend you don’t call your employee’s Romeo – that may get some attention under other policies…), the Court will not give any credence whatsoever