Reality Check - who or what is a 'worker'?

Reality Check – who or what is a ‘worker’?

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A recent decision by the NSW Workers Compensation Commission (WCC) found that a Channel 7 reality TV contestant was a ‘worker’, and therefore entitled to worker’s compensation payments for a psychological injury she sustained on the show.

Recent decisions like this prove that working out if someone is a ‘worker’ for the purpose of determining entitlements is not straightforward for employers.  This might be the case for some CCER members who have volunteers, religious associates, and contractors who may make compensation or bullying claims.

 

Worker’s Compensation – Channel 7 Case Study

The Case

The applicant in this case claimed she felt bullied and harassed by fellow contestants while filming reality show House Rules – and that it was all encouraged by the producers.  She also claimed she was portrayed as a bully and suffered extensive abuse on social media as a result.  In terms of her injury, she said the experience left her unable to obtain work, feeling suicidal, caused her to increase alcohol consumption, and left her anxious about leaving her home for fear of being recognised.

The Claim

The claim was denied in part by the insurer because she was not a ‘worker’ under the Workers Compensation Act 1987 (NSW).  The WCC had to decide whether the contestant was a worker or a contractor, so applied the ‘control test’ which is widely used to determine this question.

The WCC Finding

The WCC found that the relationship between the contestant and Channel 7 was in fact employee and employer, determining that Channel 7 had exercised a high degree of control – like directing the contestant about which tasks to complete and when, and to make herself exclusively available.  The finding also noted that the contestant was not providing services as a business owner/operator, but rather as a representative of Channel 7 while engaged on the show.

The WCC also found that the main contributing factor to the contestant’s injury was her employment on the show. The tribunal described Channel 7’s failure to remove or shut down the negative posts on its social media platforms as “extraordinary” and a factor contributing to the injury.

The contestant was therefore found to be eligible to make a worker’s compensation claim, was granted payment for medical expenses, and was referred to a specialist for an assessment of the level of impairment she suffered.

Other Implications

Interestingly, the finding of an employee/employer relationship could have other implications for the applicability of the Fair Work Act 2009 protections such as the minimum wage and other entitlements under the National Employment Standards.  However, these matters are not within the WCC’s jurisdiction and so were not considered in the decision.

 

Bullying Jurisdiction – Barnados Case Study

The Case

Another recent case in the Fair Work Commission (FWC) also examined the issue of who is a “worker” in relation to a Barnados foster carer who applied to the FWC for an order to stop bullying.  Under the Fair Work Act 2009, a ‘worker’ can make such an application as the definition of ‘worker’ has the same meaning as in the Work Health and Safety Act 2011 (Cwlth).

The FWC Finding

The FWC found that the foster carer was in fact a worker for WHS purposes and could therefore apply for an order to stop bullying.  The FWC noted that while the carer was not an employee, outworker or subcontractor, he satisfied the definition of ‘worker’ because he performed work for Barnardos (the person conducting the undertaking or business) in his capacity as a volunteer foster carer.  The FWC commented that the degree of control exercised by Barnados over the foster carer was significant in its assessment of whether he performed work for Barnardos, even though it fell short of the factors that would indicate an employee/employer relationship.

 

So, What Is a ‘Worker’?

While the decisions in both these cases apply only to the individuals involved, they do indicate that the term ‘worker’ can legally describe a wide variety of people who provide services for an organisation.  This definition brings with it obligations for organisations to ensure safe workplaces for all those ‘workers’.

How To Mitigate Workplace Bullying Claims

Both applicants claimed that they were bullied while performing work. So, how do you mitigate this risk?

Firstly, it’s important to build a culture that strongly promotes a workplace free of discrimination, harassment and bullying.  You can do this through:

  • publishing a policy which is readily available and known to all your workers,
  • reinforcing the organisation’s stance on these matters through regular staff training on identifying and preventing workplace discrimination, harassment and bullying,
  • having clear grievance or complaint management procedures.

 

How CCER Can Help

CCER has template policies you can implement in your workplace.  We also offer training on Workplace Bullying and Harassment – keep an eye on the training calendar for what’s coming up in 2020, or contact us about providing in-house training to your staff.

If claims of workplace bullying are made by your workers, it’s vital to promptly and appropriately respond and address these at the local level.  You can contact our Employment Relations Specialists for assistance with that process.

 

Author: Carolyn Synnott is the Manager of Operations at CCER.

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