Submissions

EQUITY RESPONSE TO DTI CONSULTATION ON MEASURES TO PROTECT VULNERABLE AGENCY WORKERS

INTRODUCTION

1. Equity is a trade union representing 37,000 performers and creative personnel who work across the whole spectrum of entertainment in the UK, principally in drama, comedy or entertainment roles.

2. Equity welcomes this consultation and the Government's focus on developing measures that will help to protect vulnerable agency workers, while supporting good employers. This response deals principally with matters relating to Equity's area of expertise and interest, including fees paid by entertainers and models.

BACKGROUND

3. Entertainment and modelling agents provide Equity members with a range of vital work-finding services. Most Equity members who are active in the entertainment industry will engage the services of an agent or personal manager, who will find them employment and act on their behalf in negotiating the detailed arrangements for that work.

4. Equity has been closely involved in the development of legislation, policy and industry practice governing the conduct of employment agents in the entertainment industry. Our priority has been to secure a framework to ensure that our members get the important services they require without fear of exploitation, while supporting the operation of genuine entertainment agents and the continued role of publication and directory services.

5. Our underlying principle in developing an appropriate framework is that the fees charged by agents for the services they provide should be deducted from earnings - so that the agent takes a fee as a result of work found. So when the Government brought forward regulations in this area in 2002 we supported the stated intention to ensure "that entertainment and model agents should only deduct sums from workers' earnings from work the agent has found for them".

6. This is the usual practice in the entertainment industry, except for some agents dealing with walk-on and supporting artists and models, who request a fee in advance. We believe it is unfair to expect our members to pay a fee simply to register with an agent, with little or no prospect of work.

7. Therefore, the ban on up-front registration fees and the restriction on book fees and publications, enacted under the Conduct of Employment Agencies and Employment Business Regulations 2003, was a significant move. However, it became clear that there were significant loopholes in these regulations, particularly due to the nature of the exceptions to the ban.

8. Unfortunately, a whole range of publications and directory services (e.g. Spotlight, Showcall, Castnet) are treated as employment agencies under the legislation. As the result, the Government included an exemption to the ban on up-front registration fees, so they could continue to operate.

9. In addition, there was a further exemption allowing agencies to publish their own books and to charge a fee to their clients in advance. This fee must be no more than an estimate of the cost of producing and circulating the individual's details in the publication. This further exemption is ill-defined, impossible to enforce and abused by some rogue agents, who charge inflated publication fees (in lieu of registration fees). Therefore, while we appreciate the need for some publications, directories or advertisements to be paid for in advance, further clarity and additional restrictions are required regarding fees paid to agents.

A NEW APPROACH

10. As a result, Equity would like to see significant changes to the current regulations and has developed a joint position on this issue with the BECTU, the union representing supporting artists in film. The resulting Joint Statement on Up-Front Fees and Book Fees for Walk-On and Supporting Artists is included as an Annex to this submission.

11. The main underlying principle of the Equity/BECTU joint statement is that the best way to protect vulnerable performers from exploitation of this kind is to create a clear distinction between publications, directories and on-line information services on the one hand, and genuine entertainment employment agents on the other.

12. A genuine entertainment employment agency has direct, personal and ongoing relationships with the artists they represent and is responsible for negotiating directly with employers. Entertainment employment agents of this kind should be licensed and be prevented from charging any fee to artists, other than commission from work found.

13. The Government should therefore amend the definition of employment agencies under the current legislation. Services such as Spotlight, Showcall, Castnet and the numerous publication and directory services in the entertainment and modelling sectors are not the same as personal managers or employment agents that actively find work.

BANNING TAKING FEES (OR A PROMISE OF FEES) ON THE DAY OR DURING A CASTING SESSION

14. As noted above, it is Equity's policy that a legal distinction should be made between genuine employment agents that actively find work for their clients, and publications or directory services. Once this distinction has been made, the only fee charged by an entertainment agent should be a limited commission fee, which is taken out of the artists earnings from work found by the agent. Artists should then receive at least the national minimum wage following deductions.

15. With this important distinction - leading to a complete ban on up-front fees being charged by genuine agents - Equity would agree with the current proposal for publishing or directory services. This would mean implementing an initial ban on seeking or taking fees for publishing or directory services. This restriction should last for a further period of 7 days after the aspiring entertainer or model first takes part in a casting session, or meets representatives of the publisher.

16. Equity believes that 7 days is the minimum length of time for such a "cooling-off" period. This will allow the entertainer or model to consult with friends, colleagues and industry sources regarding the true value of the service being provided and make a more informed decision before parting with money. It will also ensure that legitimate publishing services that operate in the entertainment industry (e.g. Spotlight) are able to continue to support their business model, in order to play their vitally important role in the industry.

17. In addition, the DTI and Advertising Standards Authority must be more proactive and seek to prevent false claims by publishers. These changes will enable valuable services to continue to operate and provide greater protection from companies charging inflated fees for services on the false promise of work that never materialises.

FEES RELATING TO A REASONABLE ESTIMATE OF THE COST OF PRODUCTION AND CIRCULATION OF A PUBLICATION

18. Equity fundamentally disagrees with the continued exemption to the ban on up-front fees so that agents can charge work-seekers a "reasonable estimate" for the cost of production and circulation of a publication. This exemption is ill-defined, impossible to enforce and abused by some rogue agents.

19. If genuine agents wish to recover costs they should do so through commission from work found for their client. When publishing and directory services charge entertainers and models for their costs, this must be subject to the sort of restrictions outlined in the section above (including a ban taking fees for a minimum of 7 days).

20. Equity's recognises that to establish a benchmark as to what constitutes a "reasonable estimate" for the cost of production and circulation of a publication could be a difficult task. However, such cases that do exist whereby unreasonable costs are being charged are readily identifiable. By gaining a feel for current industry norms in publishing it would not be too onerous to judge each case referred to the Dti on its own merits.

Justification for the level of costs can then sought by the Inspectorate. A written explanation issued by the agency would then meet with approval or otherwise. This however leaves the question of a viable enforcement procedure and further discussion on this point is required.

PUBLIC INFORMATION/AWARENESS RAISING

21. The Government's new proposals, to broaden and redefine the list of costs that can be recovered, will fail to deal with the structural problem created by providing an exemption of this nature in the first place.

22. Equity has previously worked closely with DTI officials in the development of regulations affecting the entertainment industry. It has also been one of the key communication channels, providing reliable information to its members and to aspiring performers. In the past, this has included reports and articles in the Equity members' magazine; reports to activists; information and briefings on the Equity website; and work with industry stakeholders and trade press on assessing and reporting the impact of up-front fees.

23. Equity is one of a small number of trusted sources in the entertainment industry, which its members, aspiring performers and the public will turn to for reliable information. Therefore, we believe that we have a responsibility to assist in making new information available, particularly when this concerns matter that are likely to have a direct effect on entertainers and models and the way they work.

24. However, if the regulations were to remain in the current form, any information that Equity distributed or made available would have to be accompanied by a statement of Equity policy. This would necessarily require an outline of our serious reservations to the manner of the changes, as well as any factual information or advice.

25. With respect to the distribution channels, it is worth noting that Equity will shortly be launching a new website, with a specific section for information and briefings. It would seem sensible for this issue to be covered in detail in this newly structured and simplified website.

26. Other distribution channels that actors, entertainers and models are likely to access include the trade press, their agents, major publishers and directories (such as Spotlight) and information available at their workplaces from their employers.

MINOR MISCELLANEOUS CHANGES

27. Given Equity's policy is to support a ban on all up-front fees payable to genuine employment agents, it follows that we would also oppose the proposed extension of the list of occupations in respect of which agencies may charge fees to work seekers. As we understand it, the Government is proposing is to amend Schedule 3 of the regulations, so that "stylists" (particularly those dealing with clothes, hair and make-up) may be charged a fee that is a reasonable estimate for the cost of production and circulation of a publication.

28. This change ignores the current problems outlined above regarding the failure of the current exemption to the ban on up-front fees. In particular, it will extend the uncertain and ill-defined concept of a "reasonable estimate" of the cost to other areas of the entertainment and modelling industry, rather than seeking to address the fact that this structure is already failing to protect vulnerable agency workers.

CONCLUSION

29. Equity remains concerned that the underlying problems with the current structure of the Conduct of Employment Agencies and Employment Business Regulations 2003 will not be addressed by the changes being proposed.

30. According to its 2005 annual report, the DTI Employment Agency Standards Directorate already receives more complaints about entertainment and modelling agents than any other sector (24% of cases and 23% of infringements). While Equity would always prefer to see greater compliance and higher standards, it is disappointing that despite these problems there have been no successful prosecutions taken forward by the DTI. Such prosecutions would assist in deterring agents who are failing to comply with the current regulations.

31. This "light-touch" approach to enforcement, as well as the missed opportunity that the current proposals represent, sends precisely the wrong message despite the good intentions of Ministers and officials in tackling the worst abuses.

32. That said, Equity is happy to work with the industry and Government to develop a distinction enabling legitimate publication and directory services to operate separately from employment agents; end the use of all up-front fees (including up-front book fees) by genuine employment agents; and return to the Government's original proposal, that entertainment agents should only deduct sums from workers' earnings out of work found.

24 May 2007

For further information contact:

Matthew Payton
Research and Parliamentary Officer
Equity
Guild House
Upper St Martin's Lane
London
WC2H 9EG
020 7670 0260
mpayton@equity.org.uk

ANNEX

JOINT STATEMENT ON UP-FRONT FEES AND BOOK FEES FOR WALK-ON AND SUPPORTING ARTISTS

Background - where are we coming from?

  • Equity is a trade union representing 37,000 people working in the entertainment industry, including actors, performers, walk-on and supporting artists and creative contributors. BECTU is a trade union representing more than 27,000 permanently employed, contract and freelance workers in broadcasting, film, theatre, entertainment, interactive media and allied areas.
  • Entertainment and modelling agents provide our members with a range of vital work-finding services. We understand the importance of this role and believe that agents deserve to be paid appropriately for their services.
  • We have been closely involved in the development of legislation, policy and industry practice in this area. Our priority has been to secure a framework to ensure that our members get the important services they require without fear of exploitation, in a manner that supports the operation of genuine entertainment agents and of important publication and directory services.

Principles - where do we stand?

  • Our underlying principle in developing an appropriate framework is that the fees charged by agents for the services they provide should be deducted from earnings - so that the agent takes a fee as a result of work found.
  • This is the usual practice in the entertainment industry, except for some agents dealing with walk-on and supporting artists and models, who request a fee in advance. We believe it is unfair to expect our members to pay a fee simply to register with an agent, with little or no prospect of work.
  • For this reason we supported the Government's decision to ban up-front registration fees in the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
  • Unfortunately, a whole range of publications and directory services (e.g. Spotlight, Showcall, Castnet) are treated as employment agencies under the legislation. This led to an exemption to the ban on up-front registration fees, so they could continue to operate.
  • We understand why Government agreed to exempt services that only provide publications, directories or advertisements and do not act as employment agents. However, there was a further exemption allowing agencies to publish their own books and to charge a fee to their clients in advance. This fee must be no more than an estimate of the cost of producing and circulating the individual's details in the publication.
  • This further exemption is ill-defined, impossible to enforce and abused by some rogue agents. Therefore, while we appreciate the need for some publications, directories or advertisements to be paid for in advance, further clarity and additional restrictions are required regarding fees paid to agents.

The future - what should be done?

  • The 2003 regulations (introduced in April 2004) outlawed up-front registration fees. These regulations should be enforced rigorously and promoted more widely, in order to eliminate up-front registration fees.
  • However, the best way to protect vulnerable performers from exploitation of this kind is to create a clear distinction between publications, directories and on-line information services on the one hand, and genuine entertainment employment agents on the other.
  • A genuine entertainment employment agency has direct, personal and ongoing relationships with the artists they represent and is responsible for negotiating directly with employers. Entertainment employment agents of this kind should be licensed and be prevented from charging any fee to artists, other than commission from work found.
  • In order to achieve this, the Government should therefore amend the definition of employment agencies under the current legislation. Services such as Spotlight, Showcall, Castnet and the numerous publication and directory services in the entertainment and modelling sectors are not the same as personal managers or employment agents that actively find work.
  • Once this distinction has been made, the only fee charged by an entertainment agent should be a limited commission fee, which is taken out of the artists earnings from work found by the agent. Artists should also be paid at least industry standard rates and, after any deductions, must receive an hourly rate in excess of the national minimum wage.
  • Up-front payments made for publishing services should also be subject to a cooling off period, where artists and the public have the right to a refund. In addition, the DTI and Advertising Standards Authority must be more proactive and assume the power to prevent false claims by publishers on the internet. These changes will enable valuable services to continue to operate and provide greater protection from companies charging inflated fees for services on the false promise of work that never materialises.
  • We will continue to work with the industry and Government to develop a distinction enabling legitimate publication and directory services to operate separately from employment agents; end the use of all up-front fees (including up-front book fees) by genuine employment agents; and return to the Government's original proposal, that entertainment agents should only deduct sums from workers' earnings out of work found.

November 2006

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