Submission on the Minimum Wage (Contractor Remuneration) Amendment Bill

Equity New Zealand submission on the Minimum Wage (Contractor Remuneration) Amendment Bill

20 September 2015

Equity New Zealand supports the call for a minimum wage for independent contractors, which include performers. The union made this submission to parliament:

Introduction

1. This submission is made on behalf of the 820 professional performers affiliated to Equity New Zealand, the union for New Zealand’s performers and an affiliate of the NZCTU.
2. Equity would like to appear before the committee and make a submission personally.
3. Equity New Zealand acknowledges Te Tiriti o Waitangi as the founding document of Aotearoa New Zealand and formally acknowledges this through the union’s Māori membership.
4. Equity New Zealand supports the intent of the Bill to provide protection to potentially extremely vulnerable workers, who encompass independent contractors and self-employed persons.
5. Equity New Zealand supports entirely the NZCTU’s submission on the Minimum Wage (Contractor Remuneration) Amendment Bill. This submission seeks to add more information on how performers are negatively affected by the lack of a minimum wage.
6. Equity specifically supports amending the definition of specified persons to include contractors under the age of 16, who are currently excluded, since juvenile performers (child actors) are vulnerable to low pay and extended working hours.

The lack of a minimum wage for contractors and its impact on New Zealand performers

1. Equity’s members report that professional performers and extras (performers who play non-speaking roles) often effectively earn below $14.75 per hour. Industry agreements and norms in both screen productions and live performance indicate that the minimum hours worked per day are 10.25 hrs with performers often working 14 hour days. Performers are commonly paid a daily or weekly rate. Not every contract allows for overtime to be paid and this facilitates a situation of long working days where the fee (gross) often is less than the current minimum wage.
2. Performers are in the main only paid an hourly rate where the working day is less than five hours long. This could be where they are called for wardrobe fittings or stills photo shoots or publicity engagements. These engagements are often in the middle of the day which means the performer, although being paid an hourly rate that is above the minimum, still does not earn the minimum wage for an eight hour day as the working hours are so short, and it is not possible to do other work in the hours that remain of that day.

The funding of entertainment in New Zealand

1. There are huge disparities in the industry in the budgets and funding of different forms of entertainment. Television, webseries are funded by New Zealand on Air, film is funded by the New Zealand Film Commission and private finance, and theatre/live performance is funded by Creative New Zealand and private finance. Television commercials are funded by the companies doing the advertising. Offshore funding is also a feature in offshore screen productions and co-productions. Budgets understandably differ greatly depending on the product being made (a two hour feature film or 23 episode television series would have a multi-million dollar budget as opposed to a three episode one minute webseries, for example).
2. Because of the scarcity of work for performers, there are also many performer-created co-operative or profit share productions, low budget films and webseries and no-budget films and webseries being made.
3. Crowd-funded productions are also increasingly prevalent.
4. Opponents of a minimum wage for performers could argue that because many productions are under-funded or unfunded, performers cannot realistically be afforded the right, as contractors, to a minimum wage. However, Equity would argue that without a minimum wage in the sector, all evidence points to the fact that even well-funded productions or companies are able to capitalise on a growing culture of low fees or ‘working for free’ to drive down wages across the industry. The union receives many calls from members asking how it can be legal for them to be offered fees so low for 14 hour days that they are well below the minimum wage. These members are often threatened with being re-cast (losing the job) if they refuse to accept the fee being offered. This often happens after a legally binding offer and acceptance of fewer working hours has taken place.
5. In addition, the lack of a minimum wage for contractors (performers) raises many potential health and safety problems. It is possible for film and TV producers to regularly add several hours of overtime to working days without their budgets being affected if there is no minimum wage for performers on the set.
6. A survey of our members working on funded/financed productions/companies, for example, reveals the following (names are not included to protect confidentiality):
   
   - “There are people expecting you to work for free to gain experience and exposure, especially when you are younger. Just glancing through my CV, I jotted down which ones I earned over minimum wage, and which I didn't, not factoring in those that were amateur theatre or where only charges at the door were taken....and 42 times I was properly recompensed for my work, and 81 times I wasn't”.

-“Performers are often told to do it 'for the love', however, to expect performers to do this, isn't fair. Our craft needs to be respected as such, and not expected because 'it's a hobby' or 'we love to do it'”. 

-“I filmed an American produced film in 2013 called 'Queen of Carthage' and was supposed to be getting $50 a day. I filmed three days but was only paid for two of them”. [$100 for 33 hours work or $3.03 per hour].

Other examples supplied to Equity:

-       An extra who worked two days on a funded TV series shooting in Christchurch in 2014 was paid $50 for two days work (a total of 16 hours; or $3.12 per hour).

-       A performer who was paid $60 per day in 2015 for two months for a role in a high-profile theatre company production (or $7.50 per hour during the one month rehearsal period).

-       Performers who are offered food only in 2013 in exchange for the exposure they will get by performing in television commercials for high profile brands.

-       A performer who was offered $30 per day in 2014 to cover transport costs to perform on a television commercial for a profitable product.

-       On a high profile television series in 2015, extras are paid $17.75 per hour but the maximum working hours per day are three. The contractors are normally called to work these three hours in the middle of the day and so are unable to do any other work that day.

-       A member reported that a night shoot in 2012 starting at 7pm did not finish at 10pm as promised but continued until 6am the next day. This left her unable to do a full day’s work the next day.

-       Juvenile performers (child actors) worked on a television commercial at night in 2014 with a scheduled finish time of 11pm but had to work overtime until 3am.

-       A performer who worked on an offshore funded television series in 2015 was also tasked to be the driver for the Auckland based actors. After unscheduled overtime was added to the shoot day and after driving several actors from West Auckland to the North Shore, this performer had worked 17 hours and felt that it was an unsafe working environment.

Equity New Zealand calls for entertainers/performers to be included in the minimum wage for contractors

1. The passage of the Employment Relations (Film Production Work) Amendment Act 2010 has effectively rendered all workers in the entertainment industry contractors and hence all workers in the industry are in need of protection in the form of a minimum wage for contractors.
2. This includes stage managers, sound technicians, film crew, directors and others in the industry.
3. The provision of a minimum wage for entertainment contractors is particularly important for juvenile performers (child actors) who, under industry norms, only need to be paid 75% of and adult performer’s salary until they turn 16. Yet, as mentioned above, these juvenile performers are commonly subjected to very long working days which they are not recompensed adequately for. Equity specifically supports amending the definition of specified persons to include contractors under the age of 16, who are currently excluded.
4. Equity notes that many live performance and screen productions are devised on a low-budget or no-budget basis and also do not make sufficient returns to guarantee minimum remuneration equivalent to the minimum wage if rehearsal, performance, pre- and post-production time is factored in. Equity also notes that New Zealand performers commonly donate their time and performances pro-bono to a wide range of charitable endeavours. Equity does not want to render these productions unviable.
   
   
5. Equity therefore recommends that a minimum wage for contractors be applied to all workers engaged in:

-       “Television production work (as that term is defined in s 6(7) of the Employment Relations Act 2000).”

-       “Film production work (as that term is defined in s 6(7) of the Employment Relations Act 2000), except where this is remunerated solely through an Equity endorsed co-operative profit sharing arrangement which clearly stipulates that each party involved in the production is entitled to an equal share of any profits or net income derived from the production”.

and

-       “Theatre and musical performance services except where these are remunerated solely through an Equity endorsed co-operative profit sharing arrangement which clearly stipulates that each party involved in the production is entitled to an equal share of any profits or net income derived from the production, or where actors have signed a written authority where they agree to defer payment or where they forgo a minimum wage because the performance/production is a voluntary endeavour”.