This article has been written by Shubham Jadia, a student of Indore Institute of Law
INTRODUCTION
Labor relations in the entertainment industry have been overlooked as a valuable labor model. Although labor relations in entertainment industry are unique in a number of ways, the successes that have been achieved can provide lessons for labor practitioners in general. Labor negotiations and collective bargaining agreements typically concern wages, hours, and working conditions. To that extent, labor issues in the entertainment industry are typical. Frequently, however, these basic labor principles are applied atypically in this indusrty to fit the peculiarities of the industry, and produce atypical results.
Why Watch Hollywood/Bollywood Labor?
The juncture of labor relations and the entertainment industry is both distinctive and deserving of attention. The movie industry is not only unique, but it is also one of only three industries in the United States that contributes positively to the balance of trade. The movie industry in the United States accounts for an estimated three-billion-dollar surplus balance of trade each year, making it the third-largest dollar contributor to the trade balance. The United States leads all other countries in the number of films exported, the number of countries in which its films are distributed, and the number of countries whose primary source of films is the United States. The United States produces more than ten times the number of films produced by most other countries in the world. Domestic production of movies in other countries generally accounts for less than thirty percent of the movies shown in those countries. The United States is the primary supplier of the remaining seventy percent shown.
The success of American films and television productions in world markets is indicated both by industry trade balances and by comparisons with other film- and television-exporting nations …. The United States has historically exported more than three times the total television programming exports of the next three leading exporting nations combined.
Historically, less revenues have entered the United States from television than from movies. However, improved technology and international relations indicate that increased penetration of television worldwide is likely. The latest technological advances now make television accessible to many parts of the world. In 1969, the International Telecommunications Satellite Organization (“INTELSAT”) achieved global signal coverage when it began operating satellites over the Atlantic, Pacific and Indian Oceans.
By 1985, the number of programming hours had increased to three times the 1980 figures. As technology continues to improve, each additional area that gains access to television becomes a market that demands new programming. Thus, Hollywood’s future and its role in the national economy become increasingly important.
Labor in General and a Preview of Its Influence in Hollywood
Unions are based on the premise that collective action of employees with common goals is the most efficient method to obtain a standardized agreement with an employer regarding terms and conditions of employment.” In an effort to equalize the bargaining power of employers and employees negotiating for such agreements, Congress enacted the National Labor Relations Act (“Act” or “NLRA”).” Congress intended to thwart the ability of the more powerful employer to command substandard wages by pitting employee against employee. The Act’s legislative goal derived from the congressional finding that unequal power impedes commerce. The goal of Congress to equalize power has been attained by the interaction of labor and the entertainment industry. The Hollywood model realizes the balance of power envisioned in the preamble of the Act. In achieving this result, the entertainment industry has adapted federal labor law to fit its particular needs. Use of the same laws by many other industries, however, has been less successful. This suggests a need to examine how the Hollywood system has evolved and how it works.
Labor problems and negotiations in Hollywood involve many of the same issues as labor negotiations in any other industry. In the entertainment industry, the issues over which the parties differ are typically wages and hours. Usually, actors seek increased wages under a contract and management seeks wage rollbacks. When negotiations break down and a strike results, every business in Hollywood suffers repercussions, a phenomenon which occurs in any company town. The typicality of the Hollywood system ends there, however. Unlike any other industry, with the exception of sports, bargaining over wages in Hollywood means the setting of minimum pay scales in a Basic Agreement (“Agreement”) rather than the setting of hourly wages. The Agreement is entered into with the specific understanding that it is only a point of departure for further negotiations on individual contracts.
Employment relationships in the media and culture industries
General aspects
The media and culture industries have long had a high share of atypical workers, and success and commercial rewards in these industries often depend on talent, human creativity and specialized, highly skilled work. It is thus unsurprising that employment relationships have developed somewhat differently from those in manufacturing sectors or finance, for example. Worldwide, these industries are characterized by atypical work – employment relationships that do not conform to the standard model of full-time, regular, open-ended employment with a single employer, with fixed hours, a regular income, pension entitlements and protection against ill-health and unemployment. As the ILO’s Director-General remarked, “The supposedly ‘atypical’ has become typical; the ‘standard’ has become the exception. Views are strongly divided about whether and how this matters for the attainment of decent work for all and, if so, what if anything should be done about it.” In the media and culture industries, many different forms of non-standard employment relationships have expanded during the past decades, notably: part-time, casual and fixed-term contracts; temporary agency work (often linked to festivals and other large events); self-employment (including through “umbrella companies” that deal with invoicing, taxes, social protection and so on, for freelancers); homework; and telework. The term “employment relationship” refers to (a) “regular employment”, which has three main characteristics: it is full-time, indefinite and part of a dependent, subordinate employment relationship; and (b) “non-regular employment”, which lacks one or more of the characteristics of regular employment, and can be classified into three main (sometimes overlapping) categories: non-standard working-time arrangements (part-time, on-call, zerohours, and so on); non-permanent contracts (fixed-term, project or task-based work, or casual or seasonal work); and non-dependent employment relationships (contracted or subcontracted work, economically dependent self-employment or agency work). There is also a grey area between the “non-regular” category and independent, freelance or home working.
A “freelancer” or “self-employed person” can be defined as someone “pursuing a gainful activity for their own account, under the conditions laid down by national law” in contrast to an employee, who is subordinate to and dependent on an employer. However, there may be blurred borders between self-employment and employment: some self-employed media and culture workers may be in a dependent or subordinate position (as entrepreneurs working for a single client or customer rather than an employer): others may have somewhat more autonomy: whereas others may draw benefit from their independence, and have no desire to be considered as being similar to employees. Self-employed and independent workers usually have commercial contractual arrangements rather than employment relationships.
Unclear, ambiguous or disguised employment relationships can arise in these industries. In many cases, work is performed under conditions giving rise to genuine doubts about the existence of an employment relationship (such as casual or seasonal work in the media and culture industries) while in others workers are not treated as employees, so as to disguise their legal status (for example, through false sub-contracting, the establishment of pseudo-cooperatives, the false provision of services and false enterprise restructuring). Judges and labour inspectors could play a role in assessing whether or not an employment relationship exists, based on relevant evidence. There is a growing use of paid or unpaid internship or work experience schemes for young people trying to enter the media and culture industries, which may involve months (or even years) of work and offer only distant hopes of eventual regular employment. Recent cases in the United States film and magazine industries have raised the issue of whether certain unpaid interns were really employees. In the current context of greater labour flexibility and mobility, combined with a fall in public funding, many media and culture workers face irregular and unpredictable employment opportunities and may thus be more likely to sign non-standard contracts and to have little control over their working conditions.
New technologies and new forms of work organization
In the media and culture industries, ICTs have had a significant influence on the sector’s occupations and work organization, by facilitating teleworking and freelance contracts. ICTs have decreased the importance of some occupations, while creating new ones. In Spain, for example, even though freelance work has long been a familiar feature in these industries, the number of self-employed or freelance online journalists has increased rapidly as a result of new technologies. UNI-MEI – UNI Global Union’s media, entertainment and arts division – has estimated that broadly half of its affiliates’ members are freelance or self-employed, and that a clear majority are atypical in some way, 46 reflecting a shift away from traditional employer–employee relationships and towards other ways of working, in both developed and developing economies. 41. The 2013–14 work programme of the EU Audiovisual Sectoral Social Dialogue Committee focuses on new forms of employment. A 2010 European Commission Working Document noted:
Many workers in the audiovisual sector face irregular and unpredictable employment opportunities, atypical contractual relationships and lack of control over their working conditions. This means that safeguarding and enhancing a genuine professional status for cultural and media workers is vital to making a career viable. However, audiovisual sector workers have a recognized standard of competence which allows them to be mobile within the industry across the EU and beyond.
Membership data from the NUJ (UK and Ireland) and the UK’s Broadcasting, Entertainment, Cinematograph and Theatre Union (BECTU) confirm the freelance trend: overall membership fell in recent years, although freelance membership increased. The introduction of computer technology into the media industry in the late twentieth century gave rise to concerns over musculo-skeletal disorders such as repetitive strain injury linked to keyboard usage. The focus then shifted somewhat, as increased work pressure both on employees and on freelancers led to stress and mental health issues. Responsibility for occupational safety and health now lies less frequently with employers because many salaried jobs have been converted into freelance positions.
Trends in work, work organization and employment relationships in the media and culture industries
In media and culture enterprises, restructuring, the reorganization of production processes, the need to ensure economic viability and the use of increasingly advanced technologies can lead to changes in employment relationships. The increasing numbers of freelance workers and job losses in recent years have made union organization a challenge, although such insecurity might encourage workers to seek protection through collective efforts. The majority of media and culture workers have long and irregular hours, low and variable earnings, temporary job tenure, regular unemployment and low protection. Many performers are freelance professionals for whom work tends to be infrequent, unpredictable and short-term. In the current era of non-standard work arrangements, workers in the media and culture industries may be required to be increasingly flexible about tasks, work schedules and the duration and nature of the employment relationship.
Across the whole media industry, there do not appear to have been major aggregate job losses. Within the EU27 region, for example, total employment in the audiovisual sector (including film, video and television production, sound recording and music publishing activities, and programming and broadcasting activities) increased over the period 2008–13 (see table 1), although employment in publishing activities fell by around 200,000 jobs.
Social dialogue
Social dialogue varies significantly between countries, subsectors and the public and private sectors. It may be hampered by the growth of atypical employment, as casual or freelance workers do not have stable workplaces and may replace or be replaced by other workers, potentially raising tensions between unionized and non-unionized workers. In appropriate circumstances, constructive social dialogue between stakeholders in the labour market can contribute to combining flexibility with security in regulation and to influencing national policies.
However, increasing competition, employers’ greater demand for flexibility, growing job insecurity, and changing working conditions and industrial relations have been observed in the media and culture industries in countries including Germany, Greece and the Netherlands. The increased number of self-employed workers gives greater weight to calls for flexibility and to trends towards the individualization of wages and working conditions.
At the European level, two sectoral social dialogue committees are relevant: the one for the audiovisual sector (established in 2004) and the one for the live performance sector (established in 1999). In both committees, the EAEA is the recognized social partner for the workers, while the employers’ social partner organizations are the European Broadcasting Union; the Association of Commercial Television in Europe; the European Coordination of Independent Producers; the Performing Arts Employers’ Associations League Europe (PEARLE*); the Association of European Radios; and the International Federation of Film Producers Associations. These committees discuss European social and labour issues related to the sector and are consulted on the drafting of EU legislation, in accordance with the provisions of the Treaty on the Functioning of the European Union. Training and skills development for all media and culture workers is of crucial importance, especially given the changes taking place in the industry, when technology and a fundamentally changed media landscape are requiring new skills. In some cases, social dialogue addresses training needs, but there are concerns that fewer training opportunities are offered to workers than before, despite the rapid technological and market changes that generate a need for more rather than less training.
In social dialogue in the live performance sector, career transition for performers is of relevance to the wider debate on pension age, health and safety, lifelong learning and early retirement schemes. Although the main focus has been on dancers (who usually have to leave that occupation when still young), career development and career transition are also of importance to other professions in the performing arts.
Concluding remarks
The media and culture industries have experienced rapid growth and enjoyed ever-greater public attention in recent years, but have also had a long tradition of insecure work, characterized by unclear contractual arrangements and questions over employment status within their workforce. This paper has suggested that, in line with Recommendation No. 198, guidance should be provided on how to distinguish between employed and self-employed workers in the media and culture industries, how to establish whether an employment relationship exists or not, and how to clarify which party is responsible for ensuring effective protection for workers.
The purpose of the Global Dialogue Forum on 14 and 15 May 2014 is for Government, Worker and Employer participants to discuss employment relationships in the media and culture industries on the basis of suggested points for discussion, 87 and to adopt points of consensus on future action by the ILO and its Members. These consensus points could be aimed at addressing challenges that governments and the social partners face in employment relationships in the media and culture industries, and at helping improve business and employment prospects in the media and culture industries.
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