In the latest of our Low pay/no pay week posts to support this week’s special issue of The Stage, Equity assistant general secretary Stephen Spence explains why remuneration has become such a complicated issue in the performing arts, and what the union is doing to try and bring greater clarity
The issue of low pay/no pay is becoming more and more thorny for the entertainment industry. Equity members are increasingly reporting non-paid work being advertised. This includes fringe productions, student films, reality TV, the use of unpaid amateurs alongside paid performers, and stage management internship. Equity is currently establishing a Low Pay/No Pay Rights Working Party to advance discussion of this type of activity.
The issues are complex. In general terms, a worker is entitled to at least the national minimum wage (£5.93 an hour) but non-workers or voluntary workers for charities are not.
Many arts organisations are charities. Does that mean they can use people for nothing? Not necessarily, because workers, voluntary workers and non-workers can look remarkably similar from a legal point of view. It’s the details of how the arrangement was made and of what a person is actually doing that determines their status, and whether the NMW should be paid.
In general, though, Equity takes the view that performers and stage managers, due to the nature of what they do, are more likely to be workers than not. Equity encourages any member who wants the union to assess their situation, to bring their case to us for examination, if they think they should have been paid. In addition, if Equity believes a NMW issue exists on a production, the union writes to the producer.
The fringe can be difficult because there are cases where a genuine profit share/cooperative/collective (to use a few common examples) exists. Legally, these arrangements are probably actually partnerships, and partners are likely not to be workers and, therefore, not entitled to the national minimum wage.
As you can see, words such as ‘probably’ and ‘likely’ appear in these discussions, because one cannot make definitive statements.
Confused? I should imagine so. Just hold on to the Equity view that generally, outside partnerships, a performer or stage manager is likely to be a worker. For workers in the fringe, Equity recommends the union’s Fringe Contract based on the NMW.
Equity passes no comment on open-book management - arrangements in which companies make all their financial data available to the actors and staff on its productions. This type of management does not include the use of the Fringe Contract, so it does not fulfil NMW obligations for workers. With regards to partnerships, Equity does not currently provide advice to business partners, as trade unions organise workers not businesses.
Another fringe theatre issue for Equity is the fact that some members believe strongly that unpaid work should be stopped, while others believe equally strongly that if they wish to work for nothing on a fringe production, it is their right to do so. This is one of the reasons the union is so keen for members to bring a case forward if they have a concern. It means that those who don’t want to, don’t have to.
A member can also go to Her Majesty’s Revenue and Customs if they think there should have been a NMW payment. It would be good if HMRC, which has an enforcement role in relation to the NMW, always saw things Equity’s way.
It’s our experience that it often doesn’t, which perhaps isn’t very surprising for a body more familiar with tax law than employment law. But HMRC has been given the NMW enforcement gig, not Equity. In our view, it often struggles, which is why we prefer any question being tested through an employment tribunal.
The Low Pay Commission also has a role to play, and has recommended to the government that there should be specific advice for the entertainment industry in relation to when NMW should be paid. A year later, we’re still waiting.
When it comes to the use of non-professionals in live performance areas, funding bodies often require community or other participation as part of grant requirements. Equity has guidelines that outline conditions of engagement when that is appropriate. Through our collective agreement, employers are required to consult with us first before using non-professionals, but there are new companies outside the collective agreement which can slip through the net.
Recently, companies using unpaid labour have won an Olivier Award and an Evening Standard Award. It is clearly a concern when the use of unpaid or low-paid non-professionals can occur, outside Equity’s guidelines and agreements, in the heart of the industry, and can lead to awards being won.
This can occur because, since the demise of the closed shop, there are now unionised companies and non-unionised companies. Non-unionised companies can achieve artistic excellence but, in Equity’s opinion, compete unfairly in the marketplace with the unionised companies, which maintain decent employment standards appropriate to their sector.
In relation to reality TV, those productions that are competitions often argue that they are exempt from the NMW, but this is not clear. In relation to student film productions, they should be paying the actors they use.
The NMW, of course, is not the rate Equity believes should be paid in any case. It is simply the minimum amount that must be paid to workers in live performance and recorded media, outside the areas covered by the union’s collective agreements with management bodies and some individual employers.
Beyond the no-pay debate, there is a concern that in some areas there are offers of professional work at rates less than the Equity agreement rate. These are the rates that are not on an Equity contract. ‘Why?’, members ask. The answer is that Equity is not an arm of the government or a professional accreditation body regulating the whole industry. Equity is an independent trade union organising professional workers to ensure sectors are unionised, complete with union agreements.
In some sectors, the union is strong - high levels of membership, mature relationships with employers who know they can’t just do whatever they feel like without upsetting their staff. In other sectors, the union is weak - low levels of membership, apathy and employers who believe their word is Holy Writ and that they can do what they want. The deeper the recession, the longer the credit crunch, the cockier they become. They advertise professional productions on less than the Equity rate, and many of our members, keen to work, accept the non-Equity low-pay contract.
Until Equity can unionise an area, low-paid work is offered and many union members join the ranks of the working poor, trying to keep bread on the table and milk in the fridge on bargain-basement wages.
The question of the rights of workers in the profession has come out of the low pay/no pay debate. This debate was summed up by an Equity councillor, who said: “I was told at drama school that these days I could expect to work for the first five years for nothing, or next to nothing, and that is pretty much what’s happened.”
There are questions that arise from such a reality. If the entrance levels involve low-paid or unpaid work, eventually that will mean the diversity of our industry could be seriously compromised. Only those with access to private means may survive. In addition, if fundamentalist market forces are allowed to prevail in the arts and broadcasting, the result will not be low pay/no pay - it could become pay for the privilege of working. That is the logical consequence in any area where supply outstrips demand.
How does that reality sit within a framework of industrial rights, civil rights or even human rights? How does that advance ethics in our industries? That’s what the Low Pay/No Pay, Rights Working Party will explore.
Stephen Spence is Equity’s assistant general secretary. www.equity.org.uk