Does it quack? Determining who is a worker
12 Nov 2019
- Employment Law
- Personal Injury
The courts often have to determine whether an injured person is considered to be a worker, and therefore entitled to compensation if they suffer injury during the course of an activity. In this article Richard Faulks discusses which factors are taken into consideration when determining if someone is considered to be a worker.
Does it quack?
Famously, in the case Re Porter: Ex Parte TWU (1989) the court stressed the need to look at the totality of the relationship between the parties involved, not the labels used to describe it. They said: ‘the parties cannot create something which has every feature of a rooster, but call it a duck and insist everybody recognise it as a duck’.
Who is a worker?
In the ACT, the definition of ‘worker’ under the Workers Compensation Act 1951 (the Act) is a very broad one. It covers individuals who:
(a) work under a contract of service;
(b) work under a contract for labour only or substantially for labour only; or
(c) work for another person under a contract subject to certain exceptions.
Determining who is a worker must be decided on the facts of each case and the Act provides examples and notes of who would be considered to be an employee or worker. The operation of the Act can also extend to regular contractors.
What happened in House Rules?
A recent decision in the NSW Workers Compensation Commission demonstrated how broad the interpretation of workers compensation legislation can be. A contestant on the Channel 7 reality TV show, House Rules, was successful in seeking workers compensation for a psychological injury suffered during the course of the show. She alleged bullying and harassment, which was not just allowed to occur but even encouraged by the producer of the show.
What about the contract?
The Commission rejected the argument that there was no employer/employee relationship. Channel 7 had pointed to the fact that there was a contract that expressly said that participation in the program was not employment. However, the worker argued , and the Commission accepted, that such a term in a contract doesn’t detract from the true characterisation of the relationship. In light of all of the relevant factors, including the control exhibited by the program’s producers over contestants, the relationship when viewed as a totality was really one of employment.
In other words, this was a duck even though Channel 7 tried to call it a rooster!
The lesson from the case above is that it doesn’t really matter what might be a term in the contract of engagement. The significant issues will be the true nature of the relationship, and the way in which the ’employer’ controls and exercises authority over the ‘worker’.