It has recently been reported that a former contestant on the Channel 7 reality TV program "House Rules" has won a workers' compensation case in the New South Wales Compensation Commission for psychological injury suffered after she was harassed and bullied while filming the show. She alleged the bullying was "not only condoned by the producer, but it was aggravated, even encouraged, by them".
Channel 7 argued that there was no contract of employment noting the terms of the show's contract stated that "your participation in the program is not employment" and that appearing on the program "does not create an employer/employee relationship between Seven and you" and did entitle contestants to (amongst other things) workers compensation benefits.
The plaintiff's lawyers argued the contract did not detract from the reality of the situation, which was one of employer and employee and that the relationship had to be viewed in its totality.
We agree that that argument is a correct statement of the law.
We further note that under the Workers' Compensation and Injury Management Act 1981 (WA) (Act) the definition of "worker" is broad and includes:
- Any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise and whether the contract is expressed or implied, is oral or in writing;
- Any person to whose service any industrial award or industrial agreement applies; and
- Any person engaged by another person to work for the purpose of the other person's trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services (in other words a "contractor").
Further, under Section 192, if in any proceeding for the recovery under the Act of compensation for an injury it appears to an arbitrator that the contract under which the injured worker was engaged at the time when the injury occurred was illegal, the arbitrator may, if, having regard to all the circumstances of the case the arbitrator thinks proper to do so, deal with the matter as if the injured person had at that time been a worker under a valid contract.
Finally we note Section 301 states that except as provided by the Act, its provisions apply notwithstanding any contract to the contrary, so you cannot contract out of liability (as Channel 7 appeared to have tried to do).
The decision on its face does not seem unusual to us, but in the context of reality TV shows, some of which appear to thrive on conflict, this may have serious ramifications for the producers of those shows in terms of compensating participants for damage caused to their mental health.
The question for the participants is, is it worth the prize money and ephemeral "celebrity" status. Andy Warhol said "In the future, everyone will be world-famous for 15 minutes" but is such fame really worth the risk?
The question for the producers of such shows is, do you know what the "rules" really are?
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