For the first time in South Africa, there is the possibility of a statutory mechanism that secures the economic content of the rights that performers are routinely required to transfer to the producer. Through the Copyright Amendment Bill we have a realistic hope of negotiating equitable contracts.
I am the Boss of Me
Being ‘between jobs’ has long been a euphemism for ‘unemployment’ but, is a freelance actor ever in fact ‘employed’? In, at any rate, even when an actor is working, he or she is not employed, but rather ‘contracted’. You see, actors are considered to be ‘Independent Contractors’: in other words, to be ‘self employed’. Aye, there’s the rub.
To be, or not to be an employee, that is the question.
It’s crucial that actors consider the implications of Hamlet’s musings: the distinction between having a job on the one hand, and being your own boss on the other, has far reaching consequences, legal, financial, moral and ethical.
On the face of it, as anyone leading a nine-to-five existence will tell you, there are advantages and disadvantages to ‘having a job’; just as being an Independent Contractor has its pros and cons.
As it happens, Hamlet offers counsel here too: “…there is nothing either good or bad, but thinking makes it so.” We can remain in a state of blissful ignorance, a prisoner of our own thinking, or we can make the most of our circumstances through informed choices.
So, in other words, a job is a job is a job, except when it’s not.
Labour Legislation in South Africa
Labour legislation in South Africa dates back to the 19th century, when the Master and Servants Act, Act 15 of 1856 was adopted in the Cape Province; the territories that make up today’s South Africa were autonomous at the time although, by 1904, the other provinces had all fallen in step.
But, take a closer look at the peculiar wording: the conception of ‘Masters’ in relation to ‘Servants’ is archaic, essentially feudal in character; it’s no wonder that the earliest legislation was designed to keep workers in line, even criminalising an absence from the job ‘without lawful cause’.
Needless to say, these days the law uses more benign terminology, speaking rather of ‘employers’ and ‘employees’. Yet the accepted definitions of these roles continue to emphasise the subservience of the latter: among other stipulations, the employer determines the hours within which the work will be performed and supervises the employee in the execution of his or her duties.
Wasn't slavery abolished?
“But slavery has been abolished”, you may argue, “surely now the arrangement is a two-way street”. Well, it is, but only more-or-less.
In ‘choosing’ to don the shackles of servitude, employees (servants or workers) have demanded certain safeguards to ensure that they aren’t unduly exploited by their employers (masters or bosses).
It took many decades of bitter struggle and sacrifice, but specific protections are now guaranteed in terms of the Labour Relations Act: access to dispute resolution mechanisms, such as the CCMA, regulated working hours with overtime, annual paid leave and sick-leave, maternity benefits, a pension or provident fund and unemployment insurance through the UIF.
However these benefits are regulated by the government and, as a result, are mired in red-tape and bureaucracy. Of course this stands to reason; the supposed perks are nothing but a means to an end: they’re entrenched in order to serve the system, not the workers.
It seems, then, that the Industrial Revolution simply gave the Feudal System a fresh coat of paint. That’s it, no more.
What is an Independent Contractor?
Interestingly, the term ‘freelance’ is also rooted in the feudal world of Medieval Europe: in Ivanhoe, Sir Walter Scott coins the term to describe a mercenary warrior, one whose lance is not sworn to the service of any particular lord.
In other words, freelancers, or Independent Contractors, have always worked outside of the prevailing labour system; owing no allegiance to an overlord, they are bound only by their unique codes of chivalry.
Fortunately for freelancers today, the modern commercial landscape is quite different from the backdrop to both the Middle Ages and the Industrial Revolution; for the most part, businesses no longer require legions of unskilled or semi-skilled labourers in order to operate, and expertise is increasingly in demand.
In the current environment, business-needs change on a daily basis and, particularly in these uncertain times, those enterprises most likely to thrive are those most responsive to change; the survival of the fittest depends on maximum flexibility, and this is partly achieved through access to a transient pool of competent professionals: specialists such as yourself.
Expert skills come at a price few can afford. Well, not on a full-time basis, anyway. Aside from the legalities, it is absurdly prohibitive for any business to hire-and-fire employees on an ad-hoc basis. Just think of the productivity that would be sacrificed to the obligatory labour-related paperwork: pension and provident fund administration, UIF and SDL deductions, and bargaining council returns, not to mention the inevitable negotiations with union representatives and other third-parties at every turn.
That’s why Independent Contractors in our country are expected to operate outside of the Labour Legislation. Latter-day freelancers owe their allegiance to no single lord or master; they’re bound only by the codes outlined in the South African Law of Contract.
The Contract is the cornerstone of your professional existence. A valid Contract can never be unilateral, or one-sided; it is a mutual agreement that outlines promises made by the various parties, usually in a reciprocal manner where there is some form of exchange: “I’ll do this for you, if you do that for me”. It’s quite simple, really. Well, yes and no.
As always, a demonic presence lurks within the details.
You see, the Contract defines the full extent of the relationship that exists between the signatories: the document spells out, in detail, the rights and obligations of each party in respect of the other. Anything that’s not actually in the Contract was never agreed. And, of course, the converse is also true: absolutely everything that’s in the document represents a promise, a commitment, and an obligation; whether you’ve read it or not, you have to comply.
The nine-to-five paper-shuffler or the shift-working rock-driller must do as they’re told, as long as their employer (master or boss) abides by The Labour Relations Act and the Basic Conditions of Employment Act. On the other hand, the Freelance Actor, an Independent Contractor, is obliged to do only that which they’ve specifically agreed to do; no more, no less. By the same token, the other party is required to give you, by way of exchange, only what they have explicitly agreed to provide.
So it’s crucial to insist on a written and signed Contract before undertaking any work, to read that Contract and to understand your obligations. If there’s something you feel you’ve been promised, make sure it is written down; otherwise you’re not going to get it. Remember, your agent can help you negotiate the terms of your Contract and to understand its contents, but you’re the one doing the work: know what you’re promising, and know what you’re getting in return.
How does a Guild held me as an independent Contractor?
This is where the Guild is particularly valuable: in the absence of the protections afforded ordinary employees, SAGA has negotiated, or is in the process of negotiating, Standard Terms and Conditions for Contracts with the major producing bodies in the industry. The Standard Contract takes care of much of the basic detail which has already been agreed, with the help of top legal advice and hours and hours of sometimes heated bargaining. Examine these documents, know the implications of their contents, and make sure that these terms are included, in full, whenever you are contracted.
Think of them as your equivalent of the Basic Conditions of Employment Act. Except that you’re not employed, you are contracted. And as a self-employed individual, all those perks that ordinary workers ‘enjoy’, should be provided by your employer: that is, you. You must insist on it.
For sound financial-planning, the Guild and our union partner, UASA, can point you in the direction of trusted service providers. In many instances, the union’s collective bargaining power has even secured preferential deals for members.
You are your own business: the fees you earn should cover your ‘salary’ and other overheads. Look towards having a medical plan that suits your needs, and the sooner you have a retirement plan in place, the more secure you will be in the long-run. As an Independent Contractor, you are also entitled to claim against legitimate business expenses when submitting your annual tax returns; in most cases, you’ll find you are eligible for a refund. This is certainly more, much more, than an ordinary employee can ever expect.
And for those periods when you find yourself ‘between jobs’, you can take refuge in the well-worn theatrical euphemism to justify your inactivity: ‘I’m resting’. Or you can take the lead from American actor Aaron Yoo.
“I’m an actor in between jobs right now, so I kind of live the life of a 7-year old”
As long as your boss is prepared to give you the day off. Because, as any self-respecting seven-year old will tell you – “I am the boss of me”.