Staging a protest: An illustration by members of the South African Guild of Actors over their rights
The Competitors Fee has granted a conditional exemption from some features of the Competitors Act to permit actors and freelance employees within the movie and tv {industry} collective bargaining rights.
The fee has granted the conditional exemption for 5 years.
The South African Guild of Actors, (Saga) an organisation that represents skilled actors, and the Private Managers Affiliation, which represents actors’ brokers, filed the appliance in 2022 after recognising the unfair circumstances that actors needed to work below, particularly regarding their charges and fee.
Saga, which helps actors’ and artists’ rights to honest pay, working circumstances and advantages, has greater than 500 members.
The choice was printed within the Authorities Gazette in January.
Individuals within the movie and tv and the performing arts industries are impartial contractors, not workers, and are lined below contract regulation, and never labour regulation, in South Africa, so they don’t have the identical rights as different employees, and infrequently work below the belief that they are going to enter right into a contract with a producer with equal bargaining energy, however this has not at all times been the case, Saga representing lawyer Kelly Kropman mentioned.
Within the movie and TV sector, the producer is taken into account the shopper and the actor and crew members are service suppliers. In competitors regulation impartial contractors usually are not permitted to collectively discount as that is broadly thought of anti-competitive and to the unfairness of the shopper. “The issue that we face on this {industry} is that the shopper tends to dictate the worth for the service supplier,” Kropman informed the Mail & Guardian.
“Producers will go to actors and hand them a contract and say: ‘These are the circumstances of labor. That is the speed. Take it or go away it.’”
The case that was argued earlier than the Competitors Fee highlighted that customer-service supplier relationships within the movie and tv {industry} are completely different from different industries, and so “there may be exploitation of the service suppliers by the producers in some situations”.
Kropman mentioned the exemption enabled Saga to have interaction with different gamers to create industry-recognised minimal requirements.
She added that they’d additionally been in talks with the division of employment and labour.
Its co-founder and secretary Carlynn de Waal-Smit mentioned many individuals assume the movie and TV sector is “glamorous” however, as a result of it’s not regulated, there are lots of injustices behind the scenes and this has been happening for a very long time.
“For a few years, we’ve been attempting to self-regulate as a lot as we will however we will’t self-regulate due to competitors regulation, sadly. The bargaining energy between the producers, broadcasters and the actors is so skewed that we maintain completely no energy in having the ability to negotiate agreements for any of the work, in an unregulated {industry},” she informed the M&G.
“That basically places actors ready of powerlessness in some ways.”
A high-profile case highlighting the problem goes again to October 2014, when 16 solid members of South African soapie Generations had been fired after they went on strike, demanding larger salaries and prolonged three-year contracts.
In addition they demanded royalties from episodes that had been re-broadcast, in addition to syndication charges ensuing from the sale of Generations outdoors of South Africa.
De Waal-Smit mentioned the exemption granted by the Competitors Fee enabled actors to barter a good charge that’s based mostly on their expertise and the function they’re taking part in in a manufacturing.
She mentioned that some charges had been outdated and wanted rethinking.
“One of many greatest issues we’re lobbying the division of employment and labour for is collective bargaining rights, as a result of as soon as we’ve [that], folks have to take a seat down in a room and negotiate with us.
“What the exemption has performed is it has allowed us to mainly dodge the impression of the collusion and value fixing that will come if we didn’t have it,” she added.
They had been going to have interaction with impartial producers, business producers, theatre producers, managers and different key stakeholders.
The Industrial Producers Affiliation of South Africa (CPASA) and the Affiliation for Communication and Promoting (ACA) have collectively served an software to attraction the choice of the Competitors Tribunal.
ACA informed the M&G it had “lodged an attraction on authorized recommendation, because the broader ecosystem, together with the promoting and manufacturing sectors, weren’t thought of on this choice”.
“Any regulatory adjustments ought to be based mostly on a radical evaluation of industry-specific dynamics to make sure honest and sensible outcomes.”
CPASA couldn’t present a response to questions from the M&G.
Kropman mentioned the Competitors Tribunal will determine whether or not or not the Competitors Fee’s choice was sound because it’s been appealed. She mentioned the matter might be additional appealed to the Competitors Attraction Courtroom, after which the Constitutional Courtroom if there may be cause to.
Althea Greenland, chairperson of the PMA, the second applicant, mentioned the exemption was a breakthrough for South African actors and their representatives.
“By granting this exemption, the Competitors Fee has acknowledged the need of collective advocacy in an {industry} the place particular person actors maintain little bargaining energy.
“Transferring ahead, the PMA stays dedicated to working alongside Saga and {industry} stakeholders and {industry} organisations to ascertain fairer {industry} requirements, safeguard skilled performers and promote moral enterprise practices that profit the complete leisure sector.”
Gwen Ansell, freelance author, writing trainer, media guide and artistic industries researcher, mentioned the ruling was vital as a result of it “spotlights the way in which wherein all project-based inventive work is performed outdoors the ambit of South Africa’s labour relations regime and the abuse this may give rise to”.
A nationwide survey performed final yr for the Southern African Music Rights Organisation discovered that girls musicians — typically topic to a number of the most egregious abuses — wished inventive work to be introduced into all of the related authorized frameworks round labour and pay.
“Consideration to this difficulty is lengthy overdue,” Ansell informed the M&G.
“This one ruling will definitely profit those that introduced the case. However we’d like nationwide, and enforceable, motion from authorities policy-makers to redefine and regulate all project-based inventive work, in order that actors, musicians and others routinely benefit from the full protections of the regulation, with out always having to bear the price of particular person lawsuits to say these protections.”