Thanos. The Joker. Nick Kyrgios. Every story needs a good villain.
The world of reality TV is no different.
But what happens when the 'villain' on a reality show suffers an injury during the course of filming and because of social media backlash after the show airs? Being a contestant on a reality program is certainly not traditional employment; so, are contestants of reality TV shows 'workers' for workers' compensation purposes?
Recently, a contestant on the Channel 7 show 'House Rules' argued in the Workers Compensation Commission that, through selective editing and other decisions by the television network, she had been painted as the show's villain. This resulted, she claimed, in bullying and harassment by the other contestants, producers, and the public, which ultimately caused her to suffer psychological injuries including depression and PTSD. She also claimed that she had not been able to secure employment in the show's aftermath due to her newly created notoriety. It seems no one wants to hire a villain. Let's take a moment to consider poor Thanos.
Ok, back to our reality contestant, Nicole Prince. Ms Prince claimed that she was entitled to have her medical expenses reimbursed for her psychological injuries because she was a 'worker' for Channel 7.
The definition of 'worker' under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) is broad, and it includes contracts of service, or in other words, employment contracts. So, if Ms Prince could convince the Commission that she was an employee of Channel 7, or a 'deemed worker' for the purposes of the Act, she would be entitled to reimbursement of her medical expenses.
Channel 7 argued that its relationship with Ms Prince was neither employment (contract of service), nor independent contracting (contract for services). They argued there was no service at all, just contestants competing to win a prize.
There are a number of indicia relevant to whether the relationship between an applicant and respondent is that of an employee and employer. These include the mode of remuneration, the obligation to work, the hours of work, deduction of income tax, the right of control, the right to delegate work, whose business the activities were furthering and who provides the materials and equipment.
The Arbitrator considered the totality of the relationship between the parties, including level of control that Channel 7 had over Ms Prince during the filming, that Ms Prince could not hold another job during the filming period, that she was paid a weekly allowance, and that she was clearly not running her own business but was required to further Channel 7's business.
In the circumstances, the Arbitrator found that Ms Prince had offered service for Channel 7's benefit and that she met the definition of 'worker'. Further, the Arbitrator found that even if not a worker, Ms Prince would have met the definition of a deemed worker. Accordingly, she was awarded reimbursement of her medical expenses.
This decision has sent shock waves through the reality TV industry which, from the outside, appears to rely on these types of contracts; contracts through which competitors are paid a small weekly allowance, with the tantalising opportunity of a greater prize, be it money, or 15 minutes of fame. After all, these people are contestants, not employees, right?
This is just one decision. The unique facts of each case will determine whether any given worker is an employee. But, make no mistake, this decision will echo large throughout the Australian media industry. Reality TV remains a big deal in Australia. Last year, six of the top ten regular programs of the year were in the reality TV format.1
So what happens next?
Channel 7 has appealed. That appeal will be determined by a Presidential member of the Workers Compensation Commission, with a decision unlikely until early 2020. If Channel 7 is unsuccessful, they could make a further appeal to the NSW Court of Appeal. That could result in the Court confirming the decision of the Presidential member, or remitting the matter back to the Commission for redetermination if they find an error in the decision.
There is still a bit to play out in this case. The ongoing litigation could make a show worth watching!
In the meantime, let's hope Thanos doesn't suffer a workplace injury.
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