National MW Case -

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	Topic: National MW Case -
Posted : 27/12/09 / Views : 779 / Replies : 5 /
anonymous	Hey there - for some reason Clives post has been closed so to report on my case if any are interested--- I was refused NMW- the MNW folks citing that I was NOT a worker but self employed - if self ermployed Clive- one is NOT entitled to NMW -- How do they decide-- totally arbitrary case to case apparently !! This unfortunately allos the loophole for unscrupulous employers to exploit the enthusiasm of actors to get on- get famous- get a break etc etc- The problem- a very grey area between professional and amateur- especially when the two are mixed. This allows producers and then NMW investigators to believe that those offering services (in direct contradiction to your post Clive about Expenses only being repaid at NMW) are doing so as self employed ESPECIALLY if they provide 'tools for the job' (costume- props etc) and even if they agree to start out for nothing or for expenses mislead that everyone else is in the same boat - later to find out that they are not (ie paid and unpaid working alongside each other- either paid or unpaid amatuers- professionals - 'volunteers' or combinations thereof) -- and work on the promise of future work- ie it will lead to a tour etc- even if they are then juped out of the tour--- which when it is sold to national promoters goes to West End stars--- This is a 'risk' apparently agreed by the 'self employed' -- it aint clear I would suggest a clearer line delineates amateur and pro- and perhaps never the twain should meet?? Sir Clive i would love you to have a chat with this reasonably explaining chap ant NMW- you seemed very genned up.??

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	Reply #1
Posted : 08/12/09
leeravitz 1543 posts last on: 19 hours send private reply	Hey Splat, Clearly, I am not Clive, and he knows all the details considerably better than I do, but I was following the legal rulings in the recent case with interest, and, as far as I can see, the legal position is along the following lines: 1. The law in place states that everyone who is employed under a 'contract of service' is legally entitled to be paid (at least) NMW. This does not apply, as you say, to those who are considered self-employed, and negotiate their own rates of pay. 2. The recent 'test case' that Clive was publicising established that, in that particular case, an employee who had been formally contracted, and received expenses only payment, was entitled, after bringing this to the attention of the courts, to reclaim the NMW they stood to have been paid as a formally contracted employee in accordance with the law. They were not, it is worth noting, an actor. But Equity etc. have welcomed the development because it allows them to point (in future cases) to a benchmark confirmation that contracted employees (even those who engage to work for expenses) are entitled to receive NMW in the eyes of the courts. 3. As far as Equity is concerned, any actor who does a job of work as a contractual obligation (i.e. working for anyone who is not to be considered a personal friend or associate or an amateur group - and this would be deemed to include theatre groups who perform in recognised venues, film schools and colleges, independent film makers, corporate employers etc. etc.) is entitled to be paid NMW. They can no longer enforce the payment of an Equity minimum (since the collapse of the closed shop) and, in point of fact, they can't enforce payment of the NMW - but they, nonetheless, take the attitude that you, as a contracted performer, are formally entitled to it. Actors are always considered self - employed for tax purposes, but are considered to work in accordance with contracts of employment on every job of work they do. There are specific legal definitions which can be cited in this regard, and I have, for example, used them in the past to get e.g. HMRC to define my status properly for benefit purposes. There is a similar case at stake here - and it is the government representatives who have got their facts wrong. However, just because they are civil servants doesn't mean that they understand anything about the particulars of acting work. In a similar way, the benefits office could not make head nor tail of my taxable status until I could point them to paragraph 7, subsection B etc., at which point they could reassure themselves by checking the appropriate boxes and processing the information. If you really want to make a solid claim for NMW, then you would have to make the exact circumstances clear to the government operatives. Equally, to be in with a chance of upholding the claim, I assume you would need to actually take the case into the courts, as the NMW is not owed to you by the government, but by the contracted employer, who chose not to pay for whatever reasons they felt justified. Minor government minions are bound to fob you off with a 'Oh, you're self - employed, so you have no right to NMW' answer, because it makes their lives easier not to have to process your paperwork, and lower level jobsworths aren't capable of making a suitable distinction anyway. But I believe that the distinction stands, and Equity support the idea, in law, that you are a contracted employer owed NMW, regardless. The issue is whether or not the employer can be coerced into coughing up; it is not whether or not you are contracted for employment. Provided there was a written or even verbal agreement, you are formally an employee. Naturally, some professionals e.g. party entertainers etc. are truly self-employed, and negotiate their own rates, but formal acting is contracted work, however vague the contract agreement.

Reply #1

Posted : 08/12/09

leeravitz
1543 posts
last on: 19 hours
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Hey Splat,

Clearly, I am not Clive, and he knows all the *details* considerably better than I do, but I was following the legal rulings in the recent case with interest, and, as far as I can see, the legal position is along the following lines:

1. The law in place states that everyone who is employed under a 'contract of service' is legally entitled to be paid (at least) NMW. This does not apply, as you say, to those who are considered self-employed, and negotiate their own rates of pay.

2. The recent 'test case' that Clive was publicising established that, in that particular case, an employee who had been formally contracted, and received expenses only payment, was entitled, after bringing this to the attention of the courts, to reclaim the NMW they stood to have been paid as a formally contracted employee in accordance with the law. They were not, it is worth noting, an actor. But Equity etc. have welcomed the development because it allows them to point (in future cases) to a benchmark confirmation that contracted employees (even those who engage to work for expenses) are entitled to receive NMW in the eyes of the courts.

3. As far as Equity is concerned, any actor who does a job of work as a contractual obligation (i.e. working for anyone who is not to be considered a personal friend or associate or an amateur group - and this would be deemed to include theatre groups who perform in recognised venues, film schools and colleges, independent film makers, corporate employers etc. etc.) is entitled to be paid NMW. They can no longer enforce the payment of an Equity minimum (since the collapse of the closed shop) and, in point of fact, they can't enforce payment of the NMW - but they, nonetheless, take the attitude that you, as a contracted performer, are formally entitled to it. Actors are always considered self - employed for tax purposes, but are considered to work in accordance with contracts of employment on every job of work they do. There are specific legal definitions which can be cited in this regard, and I have, for example, used them in the past to get e.g. HMRC to define my status properly for benefit purposes. There is a similar case at stake here - and it is the government representatives who have got their facts wrong. However, just because they are civil servants doesn't mean that they understand anything about the particulars of acting work. In a similar way, the benefits office could not make head nor tail of my taxable status until I could point them to paragraph 7, subsection B etc., at which point they could reassure themselves by checking the appropriate boxes and processing the information. If you really want to make a solid claim for NMW, then you would have to make the exact circumstances clear to the government operatives. Equally, to be in with a chance of upholding the claim, I assume you would need to actually take the case into the courts, as the NMW is not owed to you by the government, but by the contracted employer, who chose not to pay for whatever reasons they felt justified.
Minor government minions are bound to fob you off with a 'Oh, you're self - employed, so you have no right to NMW' answer, because it makes their lives easier not to have to process your paperwork, and lower level jobsworths aren't capable of making a suitable distinction anyway. But I believe that the distinction stands, and Equity support the idea, in law, that you are a contracted employer owed NMW, regardless. The issue is whether or not the employer can be coerced into coughing up; it is not whether or not you are contracted for employment. Provided there was a written or even verbal agreement, you are formally an employee. Naturally, some professionals e.g. party entertainers etc. are truly self-employed, and negotiate their own rates, but formal acting is contracted work, however vague the contract agreement.

	Reply #2
Posted : 09/12/09
anonymous	Yes indeed- very true but it seems that it is very open to 'interpretation' - ie arbitrary regional interpretation of the ruling- the crux is whether you are deemed a 'worker' (even if self employed- a worker at the time of engagement BY THEM - or indeed self employed whilst offering services- a big thing apparently is if you provide your own costume props etc- deemed to be 'tools' -- evne though I didn't they stil found in favour of them (partly i think because there were amateurs also working alongside) -- who said that they were happy to work for just the show (even though the promise to tour and possibly West end was reneged on as was my reimburselent of purchase of parts of the costume-- ) the company 'used' these 'actors' to then present the show in a national venue (showcase for them to interested investors) and 'sold ' it to the tour -- which probably end up West end-- without most of the cast-- is this right?? Apparently the other two Professionals - the stars- were paid and therefore deemed to be 'self employed' somehow -- but not me- who didn;t realise that some were paid and some not at the start-- this was introuced part way through -- apparently this was ok because I agreed to 'take the risk' that it would pay off eventually with the tour and West end run--- we weren't told that should it be taken up at showcase we would have to reaudition (alongside West end stars) for our roles we put 3 months into-- I wonder who would get them then !!?? Also I was fired for metioning NMW and paid and unpaid working together --- a week before tech rehersal !!! And the NMW have supported them-- but the great Sir Clive is on the case- so we'll see !!

Reply #2

Posted : 09/12/09

anonymous

Yes indeed- very true but it seems that it is very open to 'interpretation' - ie arbitrary regional interpretation of the ruling- the crux is whether you are deemed a 'worker' (even if self employed- a worker at the time of engagement BY THEM - or indeed self employed whilst offering services- a big thing apparently is if you provide your own costume props etc- deemed to be 'tools' -- evne though I didn't they stil found in favour of them (partly i think because there were amateurs also working alongside) -- who said that they were happy to work for just the show (even though the promise to tour and possibly West end was reneged on as was my reimburselent of purchase of parts of the costume-- ) the company 'used' these 'actors' to then present the show in a national venue (showcase for them to interested investors) and 'sold ' it to the tour -- which probably end up West end-- without most of the cast-- is this right??

Apparently the other two Professionals - the stars- were paid and therefore deemed to be 'self employed' somehow -- but not me- who didn;t realise that some were paid and some not at the start-- this was introuced part way through -- apparently this was ok because I agreed to 'take the risk' that it would pay off eventually with the tour and West end run--- we weren't told that should it be taken up at showcase we would have to reaudition (alongside West end stars) for our roles we put 3 months into-- I wonder who would get them then !!??

Also I was fired for metioning NMW and paid and unpaid working together --- a week before tech rehersal !!!

And the NMW have supported them-- but the great Sir Clive is on the case- so we'll see !!

	Reply #3
Posted : 09/12/09
leeravitz 1543 posts last on: 19 hours send private reply	Well, fair enough, Splat - that sounds like a whole can of worms - and I would assume that every case is judged on a case by case basis. On the other hand, I'm not sure that you can't have them over the fact that you were demonstrably fired for bringing up an issue that they didn't want discussing - you have no right to claim 'unfair dismissal', I don't think, if you are self-employed, but I believe you still have a legal right to not be fired in the event that you express an opinion that is considered 'inimical' to the company - you can probably make a claim of victimisation on the basis of discrimination, because you should be freely able to express an opinion about inequalities in treatment without being 'punished' for it. It is true that, if you are deemed self-employed, then the assumption is that you 'negotiate' your own price, and so cannot, I think, contest pay inequalities at source - but you should not be summarily dismissed from employment on the basis that you brought this issue up. I would also say that, unless formal provisions about non-payment were given in a formal contract, you can make a plausible case that there has been unnecessary obfuscation in the company's initial practices, you cannot, on this basis, be held to have 'negotiated' fairly for your self-employment, and some form of response is valid. Naturally, if the issue is that you signed contracts knowing full well the details, realised afterwards that some significant figures were being paid solidly, and then criticised the set-up, your position is less strong - but, formally, you signed a contract, and so, to declare you 'self-employed' is very questionable. And the question over dismissal is a different issue anyway. I know that you have no truck with Equity, Splat, but I've no idea if the case would be stronger upheld by Union backing - I assume you've found them to be no help? Anyway, you are right that if anyone can find you justice, it'll be Clive.

Reply #3

Posted : 09/12/09

leeravitz
1543 posts
last on: 19 hours
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Well, fair enough, Splat - that sounds like a whole can of worms - and I would assume that every case is judged on a case by case basis. On the other hand, I'm not sure that you can't have them over the fact that you were demonstrably fired for bringing up an issue that they didn't want discussing - you have no right to claim 'unfair dismissal', I don't think, if you are self-employed, but I believe you still have a legal right to not be fired in the event that you express an opinion that is considered 'inimical' to the company - you can probably make a claim of victimisation on the basis of discrimination, because you should be freely able to express an opinion about inequalities in treatment without being 'punished' for it. It is true that, if you are deemed self-employed, then the assumption is that you 'negotiate' your own price, and so cannot, I think, contest pay inequalities at source - but you should not be summarily dismissed from employment on the basis that you brought this issue up.

I would also say that, unless formal provisions about non-payment were given in a formal contract, you can make a plausible case that there has been unnecessary obfuscation in the company's initial practices, you cannot, on this basis, be held to have 'negotiated' fairly for your self-employment, and some form of response is valid. Naturally, if the issue is that you signed contracts knowing full well the details, realised afterwards that some significant figures were being paid solidly, and then criticised the set-up, your position is less strong - but, formally, you signed a contract, and so, to declare you 'self-employed' is very questionable. And the question over dismissal is a different issue anyway.

I know that you have no truck with Equity, Splat, but I've no idea if the case would be stronger upheld by Union backing - I assume you've found them to be no help? Anyway, you are right that if anyone can find you justice, it'll be Clive.

	Reply #4
Posted : 09/12/09
anonymous	Indeed mighty Lee-- unfair dismissal is out-- but these type of buggers are clever with it you see- they won't admit that's the real reason - they jumped up that i didn't know my lines-- which i could prove i did but they never gave me chance of course-- it's only after that they mention (and only on phone) the real reason !! Not very nice some of these producers-- s'why you shouldn't in my oppinion let em get away with it by working for nowt on a pro show !!! (Unless you have a canny plan which doesn't jeaporadise any other actor- being paid. And yes wonderful Equity - some good noises but as useful as a paper umbrella- ella- ella !! But as I say the magnificent Sir Clive is on the case!!!!

Reply #4

Posted : 09/12/09

anonymous

Indeed mighty Lee-- unfair dismissal is out-- but these type of buggers are clever with it you see- they won't admit that's the real reason - they jumped up that i didn't know my lines-- which i could prove i did but they never gave me chance of course-- it's only after that they mention (and only on phone) the real reason !! Not very nice some of these producers-- s'why you shouldn't in my oppinion let em get away with it by working for nowt on a pro show !!! (Unless you have a canny plan which doesn't jeaporadise any other actor- being paid.

And yes wonderful Equity - some good noises but as useful as a paper umbrella- ella- ella !!

But as I say the magnificent Sir Clive is on the case!!!!

	Reply #5
Posted : 27/12/09
CliveHurst 1001 posts last on: 07/02/12 send private reply	Here is an extract from BECTU's article in their magazine 'Stage, Screen & Radio' December 2009/January 2010, page 11: The fight against the exploitation of freelance workers is a long running campaign which over the years has seen BECTU taking the British government to the European Court (over the Working Time laws), lobbying Parliament, negotiating with employers' bodies and when necessary taking employers to tribunals. The struggle is made all the more difficult by the oversupply of labour in film and broadcasting which, as members said in last month's journal, has served to exacerbate exploitation particularly at the entry-level grades. But over the last few weeks union action has delivered not one but two major breakthroughs for freelance workers. The first is an industrial tribunal decision which establishes that workers engaged on an expenses-only basis are entitled to payment at least in line with the National Minimum Wage, in addition to payment for the holiday they accrue. The second - after a decade of union campaigning - is that the government is finally proposing to ban up-front fees for background artistes. EXPENSES ONLY The decision arises from a case brought by Nicola Vetta, a former art department assistant, against London Dreams Motion Pictures Ltd. BECTU supported the case and has welcomed the judgement as an important milestone in efforts to rid the industry of exploitative employers who deny new entrants their lawful right to be paid for the work they do. The decision emphasises that creative industry employers are not excluded from obligations under the national minimum wage regulations BECTU assistant General Secretary Martin Spence gave evidence at the hearing on 20 November. Importantly, the tribunal's decision confirms that workers cannot be denied their statutory rights to payment even where they respond to advertisements offering work on an expenses-only basis. COULDN'T, WOULDN'T, SHOULDN'T Nicola Vetta was engaged in July last year on an expenses-only basis by London Dreams Motion Pictures Ltd for its production 'Coulda Woulda Shoulda'. She had responded to an advertisement on the website Talentcircle.org for an art department assistant to work on a feature film. "It did say expenses only which I went for, but I did want to work in film - it was my dream, like a lot of people," she said. "The ironic thing is that if the production company had paid my expenses as they'd agreed I wouldn't have gone to BECTU and taken them to court. "They haven't paid me yet but it doesn't matter. If they go past the 40-day deadline they then have to pay a lot more - 8% interest." "BECTU were amazing, absolutely incredibly amazing," she says. "Martin Spence is the guy you want on your side. The good thing is that I'm on the union's side." Sadly for the industry, this highly principled professional is retraining for a different career. "After London Dreams ruined my chances of working in the film industry they left me quite badly off financially so I had to get the money back. Then I thought, well, I really want a stable job." Martin Spence commented: "This tribunal decision will give enormous comfort to industry workers, and in particular to new entrants, who face huge demands when they are starting out but who can often find themselves at risk of exploitation. "The industry's reliance on unpaid labour is giving film and television production a bad name. We hope that this judgment will draw a line in the sand and that we will see more employers complying with the law." NO TO ZERO-COST LABOUR Nicola Vetta commented: "I am delighted with the outcome and I hope it will bring greater fairness to work in the media. There is a need for genuine work experience but it is wrong for employers to exploit the aspirations of young people as a source of zero cost labour. "In today's difficult jobs market, this practice seems to be increasingly common. Working for free is becoming accepted as a necessary investment to securing a paid job. I hope that publicising this case will help to reverse that trend." Thousands of students graduate each year in the hope of working in the media and entertainment sector. Many industry websites advertise entry-level jobs on the basis of expenses only giving rise to complaints. BECTU has been active in exposing bad practice and is working with the Department for Business, Innovation and Skills and Her Majesty's Revenue and Customs to get both sides of industry to recognise that the law on the national minimum wage applies to the creative sectors. London Dreams Motion Pictures Ltd was ordered by the tribunal to pay Nicky Vetta a sum in excess of £2000. **;^))

Reply #5

Posted : 27/12/09

CliveHurst
1001 posts
last on: 07/02/12
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Here is an extract from BECTU's article in their magazine 'Stage, Screen & Radio' December 2009/January 2010, page 11:

The fight against the exploitation of freelance workers is a long running campaign which over the years has seen BECTU taking the British government to the European Court (over the Working Time laws), lobbying Parliament, negotiating with employers' bodies and when necessary taking employers to tribunals. The struggle is made all the more difficult by the oversupply of labour in film and broadcasting which, as members said in last month's journal, has served to exacerbate exploitation particularly at the entry-level grades.

But over the last few weeks union action has delivered not one but two major breakthroughs for freelance workers. The first is an industrial tribunal decision which establishes that workers engaged on an expenses-only basis are entitled to payment at least in line with the National Minimum Wage, in addition to payment for the holiday they accrue.
The second - after a decade of union campaigning - is that the government is finally proposing to ban up-front fees for background artistes.

EXPENSES ONLY

The decision arises from a case brought by Nicola Vetta, a former art department assistant, against London Dreams Motion Pictures Ltd. BECTU supported the case and has welcomed the judgement as an important milestone in efforts to rid the industry of exploitative employers who deny new entrants their lawful right to be paid for the work they do.

The decision emphasises that creative industry employers are not excluded from obligations under the national minimum wage regulations BECTU assistant General Secretary Martin Spence gave evidence at the hearing on 20 November.
Importantly, the tribunal's decision confirms that workers cannot be denied their statutory rights to payment even where they respond to advertisements offering work on an expenses-only basis.

COULDN'T, WOULDN'T, SHOULDN'T

Nicola Vetta was engaged in July last year on an expenses-only basis by London Dreams Motion Pictures Ltd for its production 'Coulda Woulda Shoulda'. She had responded to an advertisement on the website Talentcircle.org for an art department assistant to work on a feature film.

"It did say expenses only which I went for, but I did want to work in film - it was my dream, like a lot of people," she said.

"The ironic thing is that if the production company had paid my expenses as they'd agreed I wouldn't have gone to BECTU and taken them to court.

"They haven't paid me yet but it doesn't matter. If they go past the 40-day deadline they then have to pay a lot more - 8% interest."

"BECTU were amazing, absolutely incredibly amazing," she says. "Martin Spence is the guy you want on your side. The good thing is that I'm on the union's side."

Sadly for the industry, this highly principled professional is retraining for a different career.

"After London Dreams ruined my chances of working in the film industry they left me quite badly off financially so I had to get the money back. Then I thought, well, I really want a stable job."

Martin Spence commented: "This tribunal decision will give enormous comfort to industry workers, and in particular to new entrants, who face huge demands when they are starting out but who can often find themselves at risk of exploitation.

"The industry's reliance on unpaid labour is giving film and television production a bad name. We hope that this judgment will draw a line in the sand and that we will see more employers complying with the law."

NO TO ZERO-COST LABOUR

Nicola Vetta commented: "I am delighted with the outcome and I hope it will bring greater fairness to work in the media. There is a need for genuine work experience but it is wrong for employers to exploit the aspirations of young people as a source of zero cost labour.

"In today's difficult jobs market, this practice seems to be increasingly common. Working for free is becoming accepted as a necessary investment to securing a paid job. I hope that publicising this case will help to reverse that trend."

Thousands of students graduate each year in the hope of working in the media and entertainment sector. Many industry websites advertise entry-level jobs on the basis of expenses only giving rise to complaints.

BECTU has been active in exposing bad practice and is working with the Department for Business, Innovation and Skills and Her Majesty's Revenue and Customs to get both sides of industry to recognise that the law on the national minimum wage applies to the creative sectors.

London Dreams Motion Pictures Ltd was ordered by the tribunal to pay Nicky Vetta a sum in excess of £2000.

**;^))

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