IS A DJ (DISC JOCKEY) A PERFORMER?
Hazell v Sewell [2020] FCCA 2446 (11 September 2020)
This case is about a DJ (Disc Jockey) contending that he is a casual employee entitled claims under the Live Performance Award 2010
Facts:
The Applicant worked as a DJ (or ‘disc jockey’) for the Respondent. The applicant contends that he is a casual DJ pursuant to the provisions of the Live Performance Award 2010. The Applicant seeks financial remedies for the underpayment of wages and civil penalties for breaches of the Fair Work Act 2009. The Respondent denies that any such payments are due to the Applicant.
The Applicant submits that the Respondent is principally concerned with performance of work in the live entertainment industry. The Respondent denies this.
Issue: Is the applicant covered by the Live Performance Award which entitles him to the financial remedies sought?
Law:
- The term “performance” is defined in clause 3.1 of the Award to mean:
Performance means a performance given by employees which is open to the general public on payment of an admission charge and/or for which the employer receives payment or other benefit.
- Corporate Affairs Commission (SA) v Australian Central Credit Union - the criterion which distinguishes an offer to a group of offerees who are not a section of the public from an offer to a section of the public is this: whether the offerees are members of a group who, by reason of their antecedent relationship with the offeror, have an interest in the subject matter of the offer substantially greater than or substantially different from the interest which others who do not have that relationship would have in the subject matter of the offer.
Analysis:
The evidence indicates that the principal or major or substantial aspect of the Applicant’s employment did not involve a public performance and thus he was not conducting a performance as defined in the Award. The Applicant was performing to a section of the public, i.e. those members of the public invited to an event, but that does not suffice for present purposes. The meaning of words ‘the public’ and whether this includes a section of the public, was discussed by the plurality of the High Court in Corporate Affairs Commission (SA) v Australian Central Credit Union [1985] HCA 64; (1985) 157 CLR 201.46.
It seems anomalous that DJs are not covered by the Live Performance Award 2010 despite its obvious intent to provide broad coverage in the field. The drafting on the Award provisions is complex – perhaps unnecessarily so.
Conclusion: Nonetheless, and consistent with prevailing norms of Award interpretation, on the evidence before the Court, the Applicant is not a Performer Category 2, and is thus not covered by the Award. It must follow that his case fails and his Statement of Claim must be dismissed.
