Recently I post a story by Julius Grafton about the new pay rates that came into effect at the beginning of 2010. Now there has been some confusion and concern about these new awards. So Julius and CX magazine recently organised a summit so that people in the industry could get together and discuss the new awards and the impacts. As I was not able to attend due to work commitments on the Fringe 2010 I am reposting the summit paper that was the result of this meeting. I would like to thank Julius and CX for allowing me to do this. We need to start a dialogue among people who have concerns and the people with answers, and if we are still not happy we need to move towards getting it changed.
It is a long read, but it is a good idea to read and see were you stand.
NEW INDUSTRIAL AWARDS
By Julius Grafton
Affecting Live Performance, Events, Venues,
TV, Film and associated fields
An extract of this Paper was delivered by Julius Grafton to industry practitioners at JuliusMedia campus in Sydney on Wednesday March 10, 2010
PURPOSE OF THIS PAPER
The purpose of this paper is to share information, identify issues and broadcast solutions for employers, contractors and employees.
A caution: the advice given here is general, we are not industrial lawyers and you should seek professional advice before implementing any changes in your organisation.
There has never been a consistent national industrial Award covering the Live Industry. Awards as they have existed were hard to find and interpret. This lack of consistency has provided a vaccum where various minimum pay concepts thrived, along with exploitation.
The JuliusMedia position is that with a new national award that applies to almost everyone, the minimum pay rates and entitlements need to be widely known, top provide a level playing field for employers.
THE MODERN AWARDS
122 Modern Awards replaced 1,500 pre reform awards on 1st of January 2010.
These Modern Awards guarantee minimum conditions. Some Federal and State awards remain, but the Modern Award is the new minimum standard.
Modern Awards are NOW IN PLACE, provisions relating to unfair dismissal, maternity leave etc are all in place NOW.
New minimum wage levels become effective July 1st 2010.
Transition arrangements exist from an old award or enterprise agreement if applicable. These are applied across every award and designed to reduce the impact if the given Modern Award results in a lower base rate of pay, or a greater rate. An example is aged care, where some State awards paid more than the new (national) Modern Award. In that case, workers faced pay reductions.
The Transition Arrangements allow for the pay differences (up or down) to be phased in over five years.
Fair Work Australia is now the national workplace relations tribunal. www.fwa.gov.au
The Modern Awards that potentially apply to our industry are:
•MA000081 Live Performance
•MA000080 Amusement, Events and Recreation
•MA000091 Broadcasting and Recorded Entertainment
•MA000102 Traveling Shows
The full list of Modern Awards is here: http://www.airc.gov.au/awardmod/fullbench/awards.htm and this page is also where you’ll find the National Training Wage (on the left, half way down). More on this later.
The National Employment Standards are 10 minimum workplace entitlements across all awards. These are:
1. A maximum standard working week of 38 hours for full-time employees, plus ‘reasonable’ additional hours.
2. A right to request flexible working arrangements to care for a child under school age, or a child (under 18) with a disability.
3. Parental and adoption leave of 12 months (unpaid), with a right to request an additional 12 months.
4. Four weeks paid annual leave each year (pro rata).
5. Ten days paid personal/carer’s leave each year (pro rata), two days paid compassionate leave for each permissible occasion, and two days unpaid carer’s leave for each permissible occasion.
6. Community service leave for jury service or activities dealing with certain emergencies or natural disasters. This leave is unpaid except for jury service.
7. Long service leave.
8. Public holidays and the entitlement to be paid for ordinary hours on those days.
9. Notice of termination and redundancy pay.
10. The right for new employees to receive the Fair Work Information Statement.
A complete copy of the NES can be accessed at http://www.fairwork.gov.au and employees must have workplace access to the short, two page version of the NES
WHO is covered? All the Modern Awards are laid out in similar fashion. The definition of ‘Coverage’ is at start of all Modern Awards.
The catch-all is this: “Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”
Let’s look at the four awards, and the definitions applied within.
These are specific extracts from the Awards:
Live Performance Industry means producing, including pre-production and post-production, staging, lighting, audio and audio/visual, presenting, performing, administration, programming, workshops, set and prop manufacture, or otherwise undertaking live theatrical, performance art, operatic, orchestral, dance, erotic, variety, revue, comedy, multi-media, choral, or musical performances, productions, presentations, workshops, rehearsals or concerts, including the provision, sale, service or preparation of food or drink and also including selling tickets by any means, for or in or in connection with any such performances, productions, presentations, workshops, rehearsals or concerts and including the operation of venues or other facilities, whether permanent or temporary, utilised for such performances, productions, presentations, workshops, rehearsals or concerts are performed or presented in the presence of an audience, or are recorded by any means.
Amusement, events and recreation industry means the operation of:
(i) leisure and recreation facilities and centres;
(ii) sporting, exhibition, convention and amusement complexes;
(iii) theme parks;
(iv) heritage, tourism and cultural centres;
(v) museums and galleries;
(vi) animal parks and aquariums;
(vii) agricultural and horticultural shows
(viii) carnivals and amusement parks;
(ix) ten pin bowling venues;
(x) go-kart racing venues; and
(xi) amusement arcades, including video game and pinball parlours.
Travelling Shows award covers employers throughout Australia in the industry of travelling shows including the operation by an itinerant employer of any stand, fixture or structure for the purpose of providing amusement, food and/or recreation (but excluding the sale of sample bags) during the currency of and associated with any agricultural or horticultural show, carnival, rodeo, gymkhana, community event or festival, including the erection and/or dismantling and/or maintenance of such stand, fixture or structure, and their employees in the classifications in clause 13-Classifications.
Broadcasting and Recorded Entertainment industry means the production (including pre-production and post-production), broadcasting, distribution, showing, making available, and/or sale of audio and audio/visual content including but not limited to feature films, television programs (including series, serials, telemovies and mini-series), news, current affairs, sport, documentaries, video clips, digital video discs, television commercials, training films and the like whether for television exhibition, theatrical exhibition, sale to the public, digital media release or release in any other medium.
DIFFERENCES BETWEEN THE AWARDS
The Live Performance, Amusement, Events and Recreation and Traveling Shows awards are all now a 3 hour minimum call for casual crew.
The Broadcasting and Recorded Entertainment award is a 4 hour minimum call, as is the Building and Construction General On-site Award, where Riggers and Doggers are covered. Forklifts are also in there, but probably also pop up in other awards as well.
Most employers will end up dealing with different awards for different staff: technical crew in film, TV or on stage are usually supported by administrative staff, who would be under the Clerks-Private Sector Award 2010 (MA000002).
There are some major differences between awards. Live Performance has no Junior rates of pay, but Broadcasting and recorded Entertainment does in some areas – most probably due to cinema staff coverage. Junior rates of pay are excluded from Film Production.
Broadcast technicians have a history of grading through B, B+ to A and A+, with more defined pay levels than Live Production, which has tended to be organised (in the past) into Theatre or Concert, those being the only activities sometimes covered by awards.
The Broadcasting and Recorded Entertainment award has a very comprehensive set of Classifications shown in Schedule B to better separate roles in TV, and in Schedule H for Motion Picture Production – no longer called ‘film’ since everything will soon be on video.
Because of the additional classifications, it isn’t easy to list the pay levels against skills here – a thorough reading of the Award is necessary. The pay levels range from $637.60 per week at Grade 5 – the lowest ‘technician’ level, through to $934.20 at Grade 18.
There does not appear to be a massive difference between pay levels in the Live Performance Award and pay levels in the Broadcasting and Recorded Entertainment award. But there are differences in how work hours are calculated across the 38 hour week.
All Modern Awards return penalty rates to the mix; and require double time on Sundays (unless you are on tour). And the Holiday penalty loading of 17.5% returns.
In all the awards affecting entertainment, full time is a 38 hour week and casual loading is full time rate (per hour) + 25%.
LIVE PERFORMANCE AWARD
Penalty rates (page 53) apply after 8 hours (casual 47.2b) and after 12 ‘rostered’ hours (fulltime, 47.1 a)
Penalty rates apply for all hours after 38 hours worked in a week (full time employees. 47.1d) BUT not factory work. Full time factory sound or lighting work (and we assume Audio/Visual is included) accrue time off instead of overtime after 152 hr cycle. Caution is required of course, see 45.1c, for a set of rules about cyclic rostering (P51).
Penalty rates are time and a half for 2 hours, then double time. All SUNDAY work is always DOUBLE TIME – unless you are ‘touring crew’.
Touring crew receive 17.5% penalty averaging instead of overtime. Note: crew must still be paid incidentals and for all actual hours worked.
A really big provision affects Crewing Services, where crew get a 52.5% penalty rate for work between 11pm – 6am. Normal rates apply outside those hours.
PAY RATES: LIVE PRODUCTION
The Live Performance Award has different pay level Classifications. Refer page 14 (Live Performance Award) for the actual pay rates, and the Classifications themselves appear in Schedule B (page 60).
For technical roles, these are:
|Level 1 trainee* 6 weeks||$543.90||$17.89|
|Level 2 stage hand||$593.90||$19.54|
|Level 3 unqual tech||$625.15||$20.56|
|Level 4 sound/lx tech||$637.60||$20.97|
|Level 5 console op||$658.45||$21.66|
|Level 6 theatre tech, op||$679.30||$22.35|
|Level 8 Tech supervisor||$724.37||$23.83|
|Level 10 Diploma, experienced tech||$750.35||$24.68|
|Level 13 Tech manager||$831.90||$27.37|
Note that we have left out Levels that are not related to technical roles, as the Award also covers actors and musicians.
There are no Junior rates of pay.
As to how the Award will affect live performance, we have an article in CX Magazine, March 2010 issue (Number 50). The magazine can be downloaded for free at http://www.Juliusmedia.com and the article is on page 12, called “Small Shows
Will Carry Larger Labor Costs”.
NATIONAL TRAINING WAGE
The Live Performance Industry has not properly ultilised the nationally available Traineeship mechanisms, where the federal Government pays businesses a $4,000 incentive to take on each trainee. In year ended 2009, a handful of trainees were hired nationally.
A Traineeship comes under the Australian Apprenticeships framework. In Live Performance, a Traineeship qualification typically would be either:
· CUE30203 Certificate III in Live Production, Theatre and Events (Technical Operations)
· CUE30303 Certificate III in Venues and Events (Customer Service)
A trainee is hired under a formal indentured TRAINEESHIP, and then can be paid the NATIONAL TRAINING WAGE.
TRAINEESHIP are administered by a New Apprenticeship Centre near you, they are paid by the Government to arrange this.
The trainee works for 12 months under the Training wage (or greater), and the Government pays a college to train the trainee, which usually takes several weeks across the year. A part time traineeships can be extended to two years duration.
The trainee is awarded a Certificate III when year up. At that point an organisation can hire or replace the trainee.
There are some limitations. A Trainee must not already have a Certificate III that is the same as offered in the Traineeship.
This limits pool of school leavers, many of whom have that qualification and want to work in the industry!
Also there are only a few colleges that exist to deliver training.
The National Training Wage is
Last year of schooling:
|Last year of schooling:||Year 10||Year 11||Year 12|
|Plus 1 year out of school||270.00||323.00||375.00|
|Plus 2 years out of school||323.00||375.00||437.00|
|Plus 3 years out of school||375.00||437.00||500.00|
|Plus 4 years out of school||437.00||500.00|
|Plus 5 or more years out of school||500.00|
ISSUES IMPACTING ON LIVE PERFORMANCE
At the Summit on March 10th 2010, some attending raised issues.
CONCERN: The night rate special provision of 52.5% penalty rate for work between 11pm – 6am. Normal rates apply outside those hours. This provides a problem where the Agency has crew working back to back jobs and they exceed 8 hours – before 11pm. They are then on time and a half for the next 2 hours, and double time thereafter. But they go back to 1.52 from 11pm.
OBSERVATION: There would not be too many days where this would happen. Also, consideration could be given to employing a pool of permanent part time trainees under the training wage for 12 months.
CONCERN: Many production suppliers pay a ‘day’ or ‘show’ flat rate based on a production day varying between 12 and 15 hours. Under the new award, time sheets are necessary and crew must be paid for hours worked and travelled.
OBSERVATION: The ‘day’ or ‘show’ rate could continue provided any work additional to the agreed amount be paid. There will be increased administration costs under all circumstances.
THREE HOUR CALL:
CONCERN: Casual theatre workers in some venues enjoy a four hour call. The award move to a three hour call could see 7 or 8 hours work lost in a week, for the same number of performances.
OBSERVATION: The Media Entertainment Arts Alliance has had a petition online and can apply to Fair Work Australia to amend the award. Live Performance Australia, representing producers, would be happy with this provision of the award. We don’t see this changing.
10 HOUR BREAK:
CONCERN: The concert tour promoters schedule back to back shows where crew leave a venue at 1.30am and must catch a mid morning flight to arrive in the next town for a midday load in. The 10 hour break is not possible. Under the award the crew are to be paid double time thereafter because they did not achieve the break.
OBSERVATION: There is a conflict in the Award where touring crew are paid 17.5% penalty averaging instead of overtime, so on one interpretation double time in lieu of the lack of break does not apply. However the duty of care provisions under all OH&S legislation should override this and concert promoters and providers need to be critically aware of their liability should an accident occur due to fatigue.
The Fair Work Ombudsman can be called on 13-1394. Or visit www.fairwork.gov.au and obtain an email link there.
Live Performance Australia (03 9614 1111) are the peak industry body representing venues, producers, promoters and production suppliers. They assert that providing industrial relations advice is a service to members, so some negotiation as to this service before joining would be a good idea.
Finally the Union that covers some of Live Production, Film and TV is the Media Entertainment Arts Alliance. The contact is Claire Montgomery, Director, Crew and Sport (02 9333 0953).