Measures to protect vulnerable workers: BECTU response to DTI consultation

9 March 2007

1. BECTU is the trade union for workers (other than performers and journalists) in the audiovisual and live entertainment sectors. We have over 10,000 freelance members, of whom a minority will use the services of agents. In particular, our walk-on/film extra members will all use such services. We have, therefore, had a long-held interest in the regulations governing agents in the entertainment sector and have had close previous contact with the DTI's Employment Agencies Inspectorate.

   Licensing and enforcement

2. Before addressing the specific issues raised by the Consultation paper in relation to the entertainment sector, we have one underlying concern which the paper does not address - ie licensing and enforcement.
3. Like the TUC and many other organisations representing agency workers, we strongly believe that a licensing system for agents should be reintroduced in order to underpin and enforce the regulations. We agree with the TUC's view, in its report 'Agency Workers: Counting the Cost of Flexibility', that 'The lack of an over-arching licensing regime opens the door to rogue operators and makes it more difficult for enforcement to be properly targeted', (p11). We note that 'gang- masters' are now required to obtain licenses as suppliers of labour under the Gangmasters Licensing Act and we believe this provides one model of how licensing could be applied to agencies as well.
4. On enforcement, we note that - despite its good intentions - the DTI Employment Agency Standards Inspectorate (EASI) remains woefully under resourced. According to the EASI Annual Report for 2004-5, only 12 field inspectors were available to cover the whole agency sector outside of the gangmasters area. Such resources are clearly inadequate to enforce even the limited existing regulations. We believe this should be remedied through the provision of significant extra resources for enlarged inspectorate both to police existing agencies and to prevent rogue agents from simply re-establishing themselves through new-agencies.

   Banning upfront fees for agents in the entertainment sector

5. We note from the consultation paper:
   • The proposal to ban agents from taking fees on the first day
   • The suggestion of extending the ban for a further 7-day cooling-off period.
6. Our concerns in this area cover all of our members who make use of agents - but we have a particular concern for walk-ons/extras, who all routinely work through agents.
7. Our view is as follows:
   • We favour a ban on all upfront fees, whether taken on the first day or within the first 7 days or longer. We therefore do not favour a ban on the first day only nor a cooling-off period of 7 days. We advocate a complete ban on all upfront agents fees ie all fees taken before work has been found and provided by the agent.
   • We consider that for such a vulnerable workforce, agents should only be allowed to take a fee or commission out of earnings from work found by the agency.
   • We further believe that such commission should not be allowed to reduce net earnings below the National Minimum Wage level.
8. Our view on this issue has been consistent through all previous DTI consultations on such matters. We strongly believe that work is not something individuals should have to pay to do. The following additional points should be noted.
   • In the previous consultation leading to the introduction of agency regulations in 2004, agencies widely assumed that upfront fees would be banned at that stage and therefore - in many cases - raised their commission rates in order to compensate. Even though the ban was not in fact introduced, increased commission rates remained. This problem was not addressed nor remedied by the DTI at the time.
   • We anticipate that if up-front fees for agents were to be banned, agents would again seek to raise their commission rates to compensate. Our view is that such commission rates should if necessary be capped and that they should certainly not be allowed to reduce walk-ons earnings below minimum wage levels. This is a significant point in light of the fact that agents are not the employers of walk-ons who therefore do not have the option of straightforward legal redress under the minimum wage legislation. It will be extremely useful if DTI can address this issue and advise agents accordingly.
   • Walk-ons will, as a matter of course, have to register with a number of agencies (perhaps six) rather than one. This is because many agencies are sectorally specialised eg in feature films or commercials or photographic work. Therefore, any upfront fees (whether taken on the second day, eighth day or any subsequent day) are multiplied by the number of agencies used. The result is an unjustifiable financial burden on a notoriously low-paid workforce.
   • In practice, agents tend not to be able to find and provide work for new clients within the first 7 days. A cooling off period as proposed is therefore highly unlikely to encompass the actual provision of work and therefore of earnings.
9. For all these reasons, we ask the DTI to accept that all upfront fees by agents should be banned in the entertainment sector.
10. There is a contextual point which emphasises how precarious the economic position of walk-ons is and which underlines the case for a ban on up-front fees for their agents. This is the issue (which is not directly addressed in this consultation but has been raised on previous occasions) of agents withholding earnings owed to walk-ons. Agents should forward such earnings to the walk-on within 10 days. However, they can request a longer period with the individual's consent. Agents commonly take advantage of this to indicate they will withhold payment for a month or longer. Individual walk-ons feel unable to challenge this because of the fear of not obtaining future work. Thus, the problem of low pay is typically compounded by delayed payment.

    Book fees for walk-ons

11. We note the proposal that fees charged for including information about the worker in a publication are allowed but limited to the direct costs of production, printing etc.
12. While appreciating the helpful intention of limiting the costs which are chargeable, we have a specific view in relation to book fees/publication fees for walk-ons.
    • We oppose all book-fees for walk-ons, regardless of whether these are for direct production costs only.
    • Our argument derives from the fact that walk-ons are typically hired in a different way to other performers. They are typically engaged on a group or collective basis and are not selected as individuals.
    • There is no need or justification for a book or publication describing the walk-ons' individual characteristics. The production company seeking walk-ons will not make any use of such publications, which we believe function as marketing devices for agencies rather than playing any role in the hiring of walk-ons.
    • If a production company - very unusually - ever did require an individual walk-on, they would hire by means of a casting session rather than by using such a publication.
13. We therefore hope that DTI will - specifically in relation to walk-ons - ban such book fees or publication fees altogether rather than simply limiting the chargeable costs.
14. The banning of book fees for walk-ons is all the more necessary because the deduction of any such fee is highly likely to take earnings below national minimum wage levels. Agents are recently tending to take on more walk-ons as clients, which is reducing the amount of work and earnings available to each individual. The problem is compounded by the fact that, since the agents do not act as the employers of the walk-ons, there is no straightforward redress against them for deducting fees which leave individuals below minimum wage levels.

    Allowable fees for publications

15. The above issues apply to agents' book-fees for walk-ons only. We take a different view in relation to other relevant publications as follows:
    • We accept that there are legitimate publication/directory services in the entertainment sector which are provided completely separately to the services of agents - for example 'Spotlight'.
    • We believe that such legitimate publication and directory services should be able to charge direct production costs to their clients on the basis that these are provided by organisations which do not function as agents.
    • We would of course exclude from this provision any publications bogusly provided by organisations which are essentially operating as agencies for walk-ons.

    Fees for diary services

16. We further believe that it should be permissible for legitimate diary services to charge a reasonable upfront fee for their services, which are used by a range of our freelance members (other than walk-ons).
17. We would, in line with our arguments above, specifically exclude agents acting for walk-ons from charging for such services.

    Amendment to schedule 3: stylists

18. We acknowledge that hair and make-up stylist is an accepted occupation in the entertainment sector and that it is no more or less appropriate to include 'stylists' within the Schedule 3 list of occupations than any of the other occupations listed.
19. Our broader concern is that the occupations list appears to be arbitrary and incomplete compared to the full list of occupations in the sector (as set out, for example, in the Schedule to the PACT: BECTU Production Agreement ie the collective agreement covering our freelance members in the sector). We are not clear what criteria have been used to trigger inclusion on the list, which is considerably shorter than the actual spread of regular occupations in the sector.
20. Any argument for extending the list should only be addressed in conjunction with our earlier arguments on fees ie we would not want inclusion on the list to override our arguments for banning/restricting fees.

    Conclusion

21. While welcoming the opportunity to respond to the Consultation, we note that this is the latest of a series of previous exercises in which the DTI has examined these issues. We hope that on this occasion the Department will take heed of our key arguments on upfront fees and book fees for walk-ons, as well as the arguments on publication/diary services and our general concerns on licensing/enforcement. We look forward to the further progress of the Consultation.