Towards Sectoral Determination
TADA Standardized Contract Campaign - Towards a Sectoral Determination
The scope of this campaign is broad in terms of its potential impact on and benefit to the Live Performance sector. In 2021 TADA Exco obtained a mandate from the TADA NSC to initiate and coordinate a campaign that would engage members and associated industry stakeholders in drafting a Standardized Contract for the Live Performance Sector. Such a document that set out and secured various basic rights and remunerations for those employed within the sector would be given legal status through the mechanism of Sectoral Determination.
In brief, a Sectoral Determination is a type of legislation that is enacted by the minister of Employment and Labour extending aspects of the Labour Relations Act (LRA) and Basic Conditions of Employment Act (BCEA) to independent contractors who are not formally acknowledged as employees.
The majority of workers in our sector are vulnerable to exploitation precisely because their negotiated work agreements fall under contract law and not employment law.
This is a critical distinction when it comes to protecting our rights and our access to support, after-the-fact. The DEL is currently open to our sector self-regulating: creating our own standardized contract that indicates which aspects of the LRA and the BCEA should apply to us. The Minister of Employment and Labour is able to rubber stamp this and use it as a road map for the Sectoral Determination that would give our contract legal status.
So, how do we go about this? TADA has come up with a framework that begins with drafting and is taken forward through advocacy among membership and lobbying the DEL.
Contractors and contracted parties have to engage around the bare minimum of basic terms that such a contract should contain. The South African Guild of Actors (SAGA) has been working on the TV and Film side of this campaign for a long time. It has been acknowledged through initial conversation and consultation that TADA is perfectly positioned to take up this gigantic task and coordinate representative organizations to begin the drafting. A unanimous vote was taken by the NSC to mandate TADA to initiate the next step in this campaign, to take the next steps in putting together a table of representatives to determine a live performance standardized contract. An initial meeting between SAGA, the PMA and TADA took place and these organizations will now establish a timeline for the drafting process.
Advocacy and Lobbying
It is now time for the Live Performing Arts Sector to take up the call and create a standardised, acknowledged agreement. A webinar was hosted by TADA on this subject and is available on our FB page with more information with specific reference to the status of artists. What follows is a short concept note and points addressed by the webinar.
Towards a Sectoral Determination - Provocation/discussion points
Freelance contractors in the South African Arts sector currently have little to no statutory protection when it comes to employment and contract rights. They are subject to contract law that does not entertain the Basic Conditions of Employment legislation that should secure their protection as independent workers. It’s a take-it-or-leave-it situation in which they have no real bargaining power. Producers hold all of the cards while artists, crewmembers and associated creatives are subject to whatever contractual agreement ends up on paper.
The COVID 19 pandemic has exacerbated this situation, forcing freelancers into a kind of crisis management relationship with producers and leaving them more vulnerable to exploitation than ever.
What if there were a magic wand that we could wave that corrected this exploitative imbalance?
In 2019 the Department of Employment and Labour offered such a mechanism in calling for submissions from across our sector in order to recognize freelancers as employees for certain provisions of the Labour Relations Act and the Basic Conditions of Employment Act. After consultation with the sector the recommendation was made by the Department of Employment and Labour to have the arts industries engage in self-regulation with a Sectoral Determination.
If, for example, crewmembers and technical staff are able to meet with producers and collectively agree on a standardized contract, the Minister of Employment and Labour will effectively “rubber stamp” it into existence. This would make it mandatory for everyone to sign the agreements, which would have statutory protection.
If our sector does not use this opportunity to come up with our own suitable contracts, the DEL will take charge and the opportunity will be lost.
Freelance contractors have a unique opportunity to determine our own conditions of employment through a mechanism that would enforce those conditions by protecting them legally. Producers, artists, crew, technical support and associated craftspeople have a unique sector wide opportunity to come together and determine a just and equitable way forward. Should we take the opportunity seriously and respond collectively to this call from the DEL, through Sectoral Determination, the foundation for future sustainable best practice can be laid.