TUC Commission on Vulnerable Employment: public consultation - BECTU response

24 September 2007

  1. BECTU is the trade union for workers (other than performers and journalists) in the audiovisual and live entertainment sectors. Between a third and a half of our members are freelances or in casual employment. While some well-established and highly skilled freelance workers can obtain regular work at suitable rates of pay, many such members are faced with permanent insecurity and uncertain earnings. Some would certainly fall within the Commission's remit. We welcome the establishment of the Commission and outline below - in a selective response to the questions raised - the particular problems facing BECTU members in vulnerable employment.

    Q1 What are the different factors that impact on the power relationship between employers and workers, and therefore place workers at risk of vulnerability?

  2. The Consultation paper lists a number of possible factors under the headings of personal characteristics; the formal employer/worker relationship; employment characteristics; government legislation and regulation; and wider social factors.
  3. As already indicated above, a key factor underlying the vulnerability of the workers we are most concerned about is that they operate in a casualised, freelance labour market. The audiovisual sector (ie broadcasting, film, independent production for film and TV, commercials, corporate production, music videos etc) operates with a shrinking core of permanent employment (concentrated in the major broadcasters) surrounded by the growth of contract working (on contracts ranging from a few months to 1 or 2 years) and beyond that by a long-established and growing freelance labour market. Outside of broadcasting, freelance working is predominant and has long been so. In theatres and live entertainment there is a parallel feature of casual employment ie workers employed on an occasional and uncertain basis to supplement permanent staff.
  4. Among those freelance workers, some are characterised (on the basis of grade or occupation) as PAYE employees, some are 'Schedule D' self-employed workers and some move between the two categories as they move from job to job. A minority obtain work through agencies -although they are not agency employees but are engaged directly by the production companies.
  5. The prevalence of freelancing in the audiovisual sector is a direct result of previous Government media policies. Since the 1980s, there has been a specific regulatory requirement for broadcasters to obtain a proportion of their programmes through independent commissioning (the 'independent quota') rather than in-house production. This led to the creation of the independent television production sector and was accompanied by successive waves of redundancies from broadcasters, with the workers affected either being compelled onto the casualised freelance labour market or required to leave the industry. The independent sector has since grown and consolidated to the point where the 'super-indies' are now larger than the smaller broadcasters. The labour market in the independent sector remains almost wholly freelance.
  6. In terms of employment law, significant problems arise in the area of employment status. The problem is that UK labour law - which confers some employment rights or 'employees' and some on a broader category of 'workers' - effectively excludes Schedule D freelances from any clear and unambiguous access to employment rights. For such freelances working in a characteristically long-hours sector, this has the particularly unfortunate affect of denying them access to rights under the Working Time Directive (an issue on which some members have sought to take cases to Employment Tribunals and been refused access on the grounds that they are not 'workers'). BECTU has consistently sought to remedy this anomaly by presenting evidence to the former DTI's long-running consultation on employment status and more recently to the European Commission Green Paper on Labour Law consultation. In neither case has there yet been any official recognition of the problem let alone a satisfactory solution.
  7. Accompanying these problems arising from the sectoral labour market and from government media and employment policy, there has been an additional failure of enforcement regimes - in respect of low pay, of agency workers and of health and safety. Lack of resources for enforcement undermines these potential support mechanisms for vulnerable workers and renders them ineffective in practice.

  8. A final explanatory factor which puts some of our members at particular risk of vulnerability is the personal characteristic of youth. It is young workers entering the freelance labour market who are, in our experience, at particular risk of being exploited. The superficial glamour of the media sector attracts many young people desperate to establish themselves and open to exploitation by being asked to work long hours for low pay or, in some notorious cases, for no pay.

    Q2 What are the employment experiences of vulnerable workers like?

  9. The primary and most characteristic feature of freelancing is job insecurity. Freelances move from engagement to engagement not out of independence but necessity. The classic freelance experience is not one of independent choice but of fear of unemployment. Their working lives are government not just by work itself but by the continuing and parallel struggle to seek future work. There is a strong pressure to be compliant within any given employment relationship since not just the current contract but the prospect of future contracts are at risk.
  10. Relatively few freelances choose this mode of working. For most, there is simply no other option since few if any permanent jobs are available. Some may in the past have had staff posts but have subsequently been forced into the 'freedom' of the freelance labour market by redundancy.
  11. A characteristic feature of the freelance-labour market is long-hours working. Daily hours are commonly 12 hours or more and weekly hours are 60 hours or more. The problem is compounded by the insidious practice of employers routinely issuing upfront contracts containing an opt-out clause from the maximum 48-hour week. Most freelances feel they have to accept the opt-out rather than object and risk losing the work. The opt-out has in effect become compulsory and constitutes an abuse of our system of working time regulations. In common with the TUC and many other unions, we have long lobbied the UK Government and the European Commission for an end to the opt-out provision in the Working Time Directive.
  12. A specific and dangerous consequence of long-hours working arises for workers who have to drive home at the end of an excessively-long working day, often from a location a considerable distance away. We have had instances of members suffering injuries in road traffic accidents arising from fatigue (as well as many other near-misses). We continue to lobby for specific requirements on employers to provide alternative options of transport home or accommodation.
  13. There is a specific problem of low pay arising for workers falsely characterised as 'volunteers' who, in our view, should be paid at least the national minimum wage. This particularly affects the most junior occupations in freelance film and TV production eg those of 'runner' (who fetch and carry messages/materials, run errands, obtain refreshments etc) or 'receptionist'. There is sometimes an alleged training element - but with a complete absence of any training structure or context. This is, unequivocally, the exploitation of young people desperate to gain a foothold in the film/TV sector.
  14. A parallel problem of unpaid, bogus 'volunteering' affects film/TV extras who are recruited outside of the normal channels for this occupation and who may be attracted by the superficial glamour of working on a film/TV set.
  15. There is also a whole subsector of micro budget so-called 'shooters' ie vanity productions by producers/directors who recruit crew members to work on an unpaid basis - with the illusory promise of a share of future revenue if the production is commercially successful (essentially a fantasy rather than a serious possibility). Again, vulnerable freelances are exploited by playing on their need to add to their CV/credits and gain work experience.
  16. Specific problems arise for a minority of freelances (most typically, film/TV extras) who work through agencies. These include upfront fees (ie agency charges prior to even finding any work for these individuals), book fees (charges for totally unnecessary 'casting books' which are essentially promotional items for the agencies rather than the workers themselves) and delayed payments by agencies (ie a delay in passing on earnings to workers from production companies). All of these practices ultimately derive from these workers' weak position in the labour market and their fear that non-compliance will preclude any future offers of work. The result is that they are permanently at risk of falling below national minimum wage levels.
  17. A final but significant factor for vulnerable freelance workers in this sector is the lack of safety-representation, especially on wholly-freelance projects. On such productions there is no ready-made system of safety reps and no time to construct one. This is compounded by the varied employment status of the workforce, which means that the eligibility of self-employed freelances to be safety reps can be called into question.

  18. The consequence is that the whole film/TV independent production sector functions without any effective system of safety representation. This is particularly undesirable in view of highly-pressurised nature of freelance project work; of the tendency to work long hours with tight deadlines; and of the frequent use of temporary, improvised workplaces ie locations rather than studio work.

    Q5 What are the solutions to vulnerable employment?

  19. In addition to our continuing industrial campaigning on these issues, we have long been lobbying for legislative/regulatory solutions to a number of problems.

  20. The independent quota

    Independent commissioning by broadcasters should be held at original levels (the 25% minimum quota) rather than extended or further encouraged (eg the BBC's voluntary commitment to higher levels of independent commissioning, at the expense of in-house employment).

  21. Employment status

    There should be a single, new and inclusive definition of 'worker' determining access to all employment rights together with a statutory presumption of coverage for all workers and a burden of proof on the employer to show that an individual is not a 'worker'.

  22. Enforcement regimes

    An increase in public funding for all relevant enforcement agencies including specifically those governing the national minimum wage, agency workers and health and safety, together with the reintroduction of licensing for entertainment agencies.

  23. Long-hours working

    An end to the opt-out from the Working Time Directive and a ban on the inclusion of opt-out clauses in upfront contracts.

  24. Bogus 'volunteering'

    The exclusion of 'volunteering' on what are clearly commercial enterprises rather than voluntary sector/not for-profit activity and where there are clear professional occupational comparators.

  25. Agency workers in the entertainment sector

    A ban on up-front fees and on book fees for film/TV extras together with stricter regulatory control of delayed payments by agencies.

  26. Safety representation for freelances

    An amendment to Regulation 8 of the SRSC Regulations to allow BECTU (alongside Equity and the Musicians' Union) to provide safety representation by means of roving safety reps or, if necessary, by full-time officials.

    Q6 What other evidence and information should the Commission be considering?

  27. For completeness, we attach a number of relevant BECTU comments/responses on:

  28. Conclusion

    We hope you will take note of our views from a sector which may not initially be considered to be characterised by vulnerable employment. We look forward to the further progress of the consultation and to the additional work of the Commission.

Last updated 7 January 2008