When the castaways of Survivor: The Australian Outback were made to eat cow brains, they probably didn't consider that to be part of their "job". However, a landmark ruling by the NSW Workers Compensation Commission has found that contestants of Seven's reality TV show, House Rules, were employees of the production company and therefore entitled to workers compensation for the psychological trauma sustained from being on the show. For producers, reality TV no doubt just became a little too real.
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In the case of Prince v Seven Network, the former contestant brought proceedings against the network alleging psychological injury in the course of her employment on the home renovation TV show. Nicole Prince detailed how she was isolated from the other contestants, harassed and bullied, and was threatened by producers to be portrayed negatively on the TV show after complaining to producers about her treatment. After complaining, Prince was given the "villain edit" and this led to online abuse from House Rules fans. As a result of her treatment on the show, and subsequent treatment by the fans, Prince experienced suicidal thoughts and depression. After the show finished Prince claimed that she has been unable to obtain work which she attributes partially to her mental health state and partially to Seven's portrayal of her as a bully on the TV show.
Seven declined liability on the basis that Prince was not an "employee", but rather an "independent contractor". Independent contractors (or at least most forms of them) are not entitled to workers compensation under the relevant NSW workers compensation law.
The distinction between "employee" and "independent contractor" is not a clear one. What has become clear over the century of legal disputation is that there are a number of factors that need to be weighed and considered when making the distinction. For example, who has the right to control the work? Who bears the risk of making a profit or loss? Who supplies capital and equipment? Is the worker independent, or are they integrated into the workplace? Can the work be delegated to another, or is personal service required? If the test for worker classification could be distilled into one question, the High Court has made it plain that the question is this: "Is the person carrying out a trade or business of their own?".
Applying these principles, the commission determined that Prince was an employee. Some of the reasons given were that Prince as a contestant was an integral part of the show as a product, Prince was not carrying out a trade or business of her own renovating houses. Seven had exclusive use of Prince for every day of filming, and exercised a high degree of control over Prince including by giving her directions on what to do and what to wear.
Injured employees are entitled to workers compensation in circumstances where there is a connection between the injury and employment. Seven conceded that the footage was edited selectively to portray Prince negatively and that they failed to remove abusive comments on social media. The commission found it "extraordinary" that though Seven was aware "of hateful comments [it] did not take steps to either remove those comments or to close the comments". It was found that Seven's actions sufficiently explained the onset of Prince's psychological injuries.
The finding in Prince v Seven Network is a problem for the reality TV industry. Reality TV strives for conflict and drama - after all, that's entertainment. Unstable contestants are a goldmine. When the contestants are boring, it's the producers' jobs to "spice things up". Earlier this year Lauren Huntriss, an ex-contestant on Nine's Married at First Sight, spoke about how producers pressured her into making statements on the show (and to the approximately 2 million viewers) about identifying as a lesbian - which she has since clarified she does not. Huntriss' anxiety was exacerbated by the way that she was portrayed on the show and she claims that she received no support from producers when she was receiving immense online backlash from viewers.
While mental health is a large concern for reality contestants, there are a number of shows which are physically dangerous. Viewers of Australian Survivor were left shocked when the rope contestant Ross Clarke-Jones was swinging on broke and he was hurtled towards the edge of a wooden deck, causing him to snap his ankle.
Putting aside the compensable injuries of contestants, the Prince decision raises many other questions. If reality TV contestants are employees, then are they entitled to all the other protections afforded to employment? Could the two women Nick "Honey Badger" Cummins unexpectedly dumped during the Season 6 finale of The Bachelor have brought unfair dismissal claims against Channel 10? If a contestant on The Farmer Wants A Wife is already married, has the network breached its implied duty of good faith to the farmer for pairing him with an unavailable partner? Are you being bullied, or discriminated against because of your disability, if you are sent home from The Biggest Loser? Facetious takes, yes, but the point is very real.
Oscar winner Gary Oldman once uncharitably referred to reality TV as "the museum of social decay". Now producers may have to answer for it.
- Rebecca Richardson is an associate in the Employment Law and Investigations Group at BAL Lawyers. She thanks James Connolly for his help preparing this article. Rebecca.richardson@ballawyers.com.au
