Strippers are vulnerable if they're not employees and not quite independent

Tuesday, 2 October 2018

Documents seen by Stuff illustrate strict rules that dancers must adhere to, or face fines in the form of pay deductions. (First published in 2017)

OPINION: The Employment Relations Authority recently issued its decision in a case brought by two former dancers at Calendar Girls Christchurch, Jessica Clifford and Tineill Hamilton-Redmond, against the establishment's owner, Casino Bar Limited.

The claim arose after Clifford and Hamilton-Redmond's shared-flat was broken into in September 2017. As a result of having to visit the police station to make a complaint, neither dancer reported to work that night.

This resulted in Clifford being told that she had been fired and having her pay docked. Hamilton-Redmond resigned around the same time after she was left off the roster. She also queried the whereabouts of money she believed was owed to her.

Unfortunately for the dancers, the authority took the view that they were independent contractors, and therefore refused to hear their claim of unjustified dismissal. In this regard the authority's decision that they were not employees, meant that the relationship between them and Calendar Girls was outside the authority's jurisdiction which is limited to employment matters.

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Former Calendar Girls' dancer Jessica Clifford claimed she was unjustifiably dismissed from the strip club.

The authority's decision makes for interesting reading – particularly what it reveals about the strict set of rules that strippers working at Calendar Girls are required to abide by.

For example, the dancers must wear matching lingerie that implies 'sexiness and sensuality', there are rules about certain clothing items having to be removed during a performance, and it is mandatory for dancers to work either Christmas Eve or New Years Eve.

Another significant aspect of the arrangement is an extensive fine system that applies where there are any breaches of Calendar Girls' rules, including $2500 for working at another strip club or agency.

Susan Hornsby-Geluk: 'Employees have significant legal rights, and contractors have very few.'

Ultimately though, a key factor that led to the authority's conclusion that the dancers were not employees, was that they were able to choose their own look and choreograph their performance.

In this sense they were their own 'product' and this was found to be consistent with the prevailing industry practice of treating dancers as independent contractors.

Strippers might fall into a category between truly independent contractors and completely dependent employees.

Although the authority accepted that the dancers were very much junior partners in their relationship with Calendar Girls, it considered the situation to be akin to a co-dependent commercial relationship.

The authority was of the view that there were certain aspects of the relationship which could be viewed either as consistent with a contractor or an employee relationship. But on balance there were more factors consistent with the former. Interestingly, the authority noted that it had to make a 'binary' choice between finding that the women were either contractors or employees, and there was nothing in between.

This highlights the current legal situation in New Zealand whereby employees have significant legal rights, and contractors have very few.

Workers who are regarded as employees are entitled to all of the protections set out in the Employment Relations Act 2000, including minimum entitlements such as annual holidays and sick leave, and protection against unjustified termination.

In the case of independent contractors, their rights and entitlements are dependent on what they have agreed with the other party. That is not to say there are no benefits to being a contractor, and often it is financially lucrative. However, it is fair to say that from a legal perspective, independent contractors will generally be in a more vulnerable position than employees in terms of job security and their ability to access minimum entitlements.

This black and white distinction can give rise to unfairness, and arguably the case of Clifford and Hamilton-Redmond would fall into this category. It is cases like this that have led the Government to announce that it is reviewing the situation of workers who fall into a third category – somewhere between contractor and employee.

This group has been described as 'dependent contractors' and are typically people who work under the control of a single person or organisation, and who do not enjoy the level of flexibility and freedom associated with truly independent contractors.

The plight of Clifford and Hamilton-Redmond highlights the need for recognition of this third category of worker and for some baseline protections to be granted to individuals who can be regarded as 'dependent contractors'.

Although there may be aspects of the relationship between the dancers and Calendar Girls that do not sit comfortably with employment in the traditional sense, it is fair to say that dancers such as Clifford and Hamilton-Redmond are in a vulnerable position where their ability to negotiate reasonable working conditions with the strip clubs that engage their services is relatively limited.

Without the safety net that otherwise comes with employment status, the potential for these types of workers to be exploited is high. Unfortunately for Clifford and Hamilton-Redmond, any change in the law in this area will come too late.

- Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers, www.dundasstreet.co.nz