September 23, 2014

Showgirls at an Adelaide striptease venue are ‘workers’ because their elaborate dresses and other apparel are their ‘tools of trade’ but in contrast their makeup, cream, strawberries and neon paint were the materials with which they worked.

The issue arose when the Supreme Court was called upon to determine whether the showgirls came within the definition of a ‘worker’ under the Workers Rehabilitation and Compensation Act. According to The Palace Gallery, their showgirls were independent contractors and not workers because they were required to provide their own music, costumes and props whereas the club provided the floor space – nothing else.

Determining whether you are a ‘worker’ and therefore entitled to claim compensation under the Workers Rehabilitation and Compensation Act is not always simple. A ‘worker’ for the purposes of the workers compensation legislation includes more than those who are commonly regarded as ‘employees’ and people who are engaged under a ‘contract’ can be included.

The issue arose in the context of the WorkCover levy (or insurance premium) payable by the club which is calculated based on a percentage of the total remuneration paid to its workers. The WorkCover Corporation had included the showgirls among the ‘workers’ at the Palace and the employer contested that decision.

Section 3(1) of the Act sets out the definition of a ‘worker’ which includes, “A person by whom work is done under a contract of service (whether or not as an employee).”

So what is a contract of service?

This also means a number of things under the Act and in this particular case the dispute concerned the part of the definition that reads, “a contract, arrangement or understanding under which one person (the worker) works for another in prescribed work or work of a prescribed class.”

What then is work of a prescribed class?

The Regulations under the Act specify the classes of work that are ‘prescribed’ for the purpose of this definition. There are quite a number of prescribed classes of work including various types of building work, cleaning work and driving. In this case WorkCover relied on the class described (in part) as, “Performing as a singer, dancer, musician, ventriloquist, acrobat, juggler, comedian or other entertainer at a hotel … or other similar venue … where the work is performed by one person to the contract for the purposes of a business carried on by another person to the contract and the work is performed personally by the worker and the value of any materials supplied by the worker does not exceed $50.”

The issue was that the showgirls supplied their own elaborate dresses exceeding $1,000 in value, other ‘apparel’ valued in the hundreds of dollars, stage makeup and hair products valued in the hundreds of dollars and various substances applied to their bodies during their routines. WorkCover took the view that the hair products, stage makeup and body substances were materials but that the assessment was concerned with the value of those materials used up in a single performance, which did not exceed $50, because the workers were engaged on a sessional basis. As for the costumes and ‘other apparel’, these were regarded as tools or equipment and not materials.

The club argued that this conclusion was wrong and that the word ‘materials’ includes tools, plant and equipment as well as consumables, suggesting that there was no difference between a showgirl who wears a costume to one who covers herself with strawberries and cream.

In dismissing the club’s application for review of the decision by WorkCover, the Supreme Court noted that there may be items used by a worker of a prescribed class that could be described both as materials, and as plant, tools and equipment. Generally, however, the word ‘materials’ refers to items on which a worker works and which – for that reason – are in whole or in part consumed or transformed by the work performed. On the other hand, plant, tools and equipment are generally items with which a worker performs his or her labour in order to effect that transformation, but which are not consumed by that work (wear and tear aside).

Very often a person assumes that they are a ‘contractor’ and therefore they don’t even pursue a workers compensation claim when they are injured. The showgirls in this case were provided with a document upon commencement that among other things stated that they were to work as independent contractors. However, the Supreme Court stated that the purpose of classifying certain types of activities as prescribed classes of work is to extend the persons to whom the Act applies beyond common law employees.

It can be seen from this case that often there are a number of steps to be followed to determine if someone is covered by the Workers Compensation laws. Regardless of whether you are an employee or consider yourself to be an independent contractor, if you have suffered an injury at work it is advisable to seek advice from a specialist Workers Compensation Lawyer without delay as time limits can apply to making a claim. Even if the injury was some time ago, you might have an entitlement to compensation for permanent disability. To arrange a free initial consultation with a Workers Compensation Lawyer in Adelaide contact Websters Lawyers today.

The Palace Gallery Pty Ltd v WorkCover Premium Review Panel and Ors [2014] SASCFC 60