Are contestants now entitled to other employment benefits, like annual leave and superannuation payments? A legal expert weighs in on a new interesting case.
Sashay away. You did not receive a rose. The tribe has spoken, it’s time for you to leave the island.
These are the dismissal catchphrases of some popular reality TV shows. After they’re spoken, contestants are ousted from the show, and usually return to their normal lives – their moment in the limelight fizzles.
Fans might see former contestant again – after they either become Instagram famous or launch their own skincare line – but it’s not common for the production to hear from former contestants once they’re gone.
But what would happen if contestants, say, came back and claimed they were unfairly dismissed? What if being told to leave the island was psychologically devastating, and they wanted compensation?
It sounds a little silly, doesn’t it? But it might not be too much of a stretch. A recent case to go through the NSW Workers Compensation Commission has seemingly given contestants a lot more power and could really shake up the reality TV landscape in Australia. It also presents an interesting employment perspective to the age-old question of what constitutes a ‘worker’, an ‘employee’ and a ‘contractor’.
The downside of fame
In the case, former contestant on the Seven Network’s (Seven) home renovation show House Rules Nicole Prince, was awarded compensation for psychological injuries she received following her stint on the show.
Prince claimed she was bullied by other contestants and that she was edited unfavourably by the show’s producers – made to look like the show’s ‘bully’ – which led to a barrage of negative comments on Seven’s social media pages, which Seven refused to remove.
In putting her claim forward, Prince said her experience on and after the show caused her to suffer from depression and post-traumatic stress disorder, and that she was unable to attain work after the show had aired after being publicly portrayed as a villain.
“After our episode was aired I was subjected to online abuse on the Channel Seven Facebook page, including receiving threats of serious physical assault. I have been fearful for my safety ever since,” she said during her hearing.
“I felt her harassed and bullied during the filming. This continued throughout all of the renovations. It was not only condoned by the producer, but it was aggravated and even encouraged by them. On one occasion I witnessed Fiona [her teammate] be physically assaulted. When I complained to Channel Seven, I was then threatened that Fiona and I would be portrayed negatively.”
She reported feeling “devastated and worthless” about her bleak career outlook and scared to leave her home.
Arbitrator Cameron Burge ruled in Prince’s favour, ordering Seven to cover the costs of her medical expenses and referring her case to a medical expert to assess the overall impacts.
Defining an employee
Prince’s success in seeking compensation is interesting in itself but the even bigger news, which could have major ramifications for studios all across Australia, is that the commission determined Prince not to be a contestant, but an employee.
People operating in a grey zone of employment law is nothing new. We’ve been having similar discussions about the gig economy, including Uber drivers and Deliveroo riders, for years. The new thing here is seeing it playing out for a TV show.
Seven argued that Prince was a willing contestant, one who had no professional renovating experience and had not signed into a contract of service, and therefore not a worker.
In a section of the agreement that Prince signed, it stated:
“You acknowledge that your participation in the program is not employment, does not create an employer/employee relationship between Seven and you and is not subject to any award or collective bargaining or workplace agreement and does not entitle you to any wages, salary, corporate benefits, superannuation, workers compensation benefits or any other compensation.”
But signing such a thing is not enough to make you not an employee. Not only did the Commission decide that Prince was providing a service, like a contractor would, it decided that “on the balance of probabilities it [the employment relationship] was one of employee and employer”.
HRM spoke with Aaron Goonrey, partner at Lander and Rogers, to look at the factors behind this balance of probabilities.
- Prince was paid $1000 per week, including a $500 fee and a $500 allowance, a remuneration rate that was determined by Seven – you could argue this is essentially like receiving wages.
- Seven determined what she could and couldn’t wear (for example, no clothing with a brand on it). This could be the equivalent of asking an employee to wear a uniform.
- She took no risk as an entrepreneur in running the business, that was on Seven.
- The goodwill of the economic activity was attached to Seven – as is the case for an employee who makes money for their employer.
- She was provided with materials from Seven – typically contractors provide their own equipment, employees don’t.
- She was essential to the business that Seven was engaging in.
- Seven had exclusive control of Prince for every hour the show was running and she completed tasks that they asked of her. This went as far as forbidding her to take off her microphone. If she wanted to go to the bathroom she had to “inform their sound recordist” and seek permission to leave the site – much like an employer can determine work hours and tasks.
- The tradespeople she contracted were approved by Seven and paid for from a budget allocated to her from Seven – in the same way a staff member would have to consult their manager to dip into company funds.
- She left her existing job and wasn’t working for any other companies during her time on the show. House Rules was her primary role.
- She was required to balance her budget at the end of each renovation. Had this been a true commercial relationship between an independent contractor and a principle, this wouldn’t have been a requirement.
You can see this list is extensive… and those are just the highlights.
“On first blush this case doesn’t look like much, but when you think about the potential ramifications, they could be quite extensive,” says Goonrey.
He says, when considering the totality of the arrangement, “the relationship between her and Seven could only be categorised as one of an employee and employer. If you can meet the factors that prove you’re an employee, that makes the terms in that contract superfluous.”
Essentially, Seven had a level of control over Prince that mirrored that of an employment relationship. This is similar to last year’s decision to call Foodora rider Joshua Klooger an employee.
The future of reality TV
Imagine if one of the queens on Ru Paul’s Drag Race claimed workroom shade constituted bullying. Or if a contestant on Survivor went AWOL from the harsh environment the show is set in because they’re taking annual leave. Or imagine a contestant from The Bachelor claiming she wasn’t given a chance to improve her performance (and wasn’t presented with a PIP) before she was given the boot from whichever dreamboat was headlining the season.
While he notes this speculation may be a bit of a stretch, Goonrey says, “If someone is voted off or someone isn’t chosen with a rose, or something like that, will this then enable that person to say ‘I’ve been unfairly treated’? It does open up the possibility that somebody may be able to make those kinds of claims.
“If she thought she was being bullied [by other contestants or the studio itself] she could have also gone to the Fair Work Commission to make a stop the bullying order.”
In this sense, Goonrey says this decision could open up a can of worms.
“There’s the possibility for other claims to be made, not just worker’s compensation. If these contestants are considered to be employees, they could make a claim that they’re entitled to annual leave, personal carers leave and superannuation payments.”
Think about how many of these shows are churned out each year. Now think about how many contestants are on each individual show. Now consider the length of time these contestants are on the show for – it’s often months at a time, long enough that many choose to quit their jobs to be involved.
Now multiply that time by the potential superannuation payments and annual leave payouts owed to each individual contestant/employee.
Superannuation alone could make for a massive total payout.
“I think broadcasters will be revisiting how they engage contestants. What’s likely to happen is that everything that was found in favour of Prince will be used to try and make a case for other contestants like her,” says Goonrey.
This is already happening. Married at First Sight star Tracey Jewel has signalled that she’s considering legal action for similar psychological injuries and public online trolling that she experienced after being on the show.
“An alternative would be that the broadcasters who engage these contestants put them on fixed term employment contracts,” says Goonrey. “If not that, then they’d have to look at the factors that were determined in Prince’s and try and do the opposite. For instance, with the control factor, the studio would have to essentially hand over an element of control to the contestant, which I don’t think is a commercially viable thing for them to do.
“I dare say that a lot of these arrangements will be revisited. There may be a move away from reality TV.”
Oh no, how will we survive?
Do you have a question about determining if someone is an independent contractor or an employee? AHRI:Assist is a great online tool to help answer all your HR questions. Exclusive to AHRI members.