Direct Selling: When Is A Distributor A Worker – NSW

Principle

Is a person injured at a direct selling company's premises deemed a 'worker' for workers compensation purposes? The 2005 NSW Court of Appeal decision in Bessemer has significant implications for direct selling companies and workers compensation insurers as it may deem distributors/consultants as 'workers' for workers compensation purposes.

Facts

Simaru Pty Ltd ("Bessemer") was involved in the direct marketing of cookware products. The marketing procedure was conducted through sales persons. One such sales person was Mrs Santelli, who arranged contracts of sale, collected payments and made deliveries. She also held the role of a "Manager", with the responsibility of recruiting 'agents' and encouraging them to work for Bessemer. For every sale which she procured, she received a commission of 24 per cent. She also received an additional 3 per cent of an "overriding commission" for each sale procured by an agent under her supervision.