There are two Federal Awards that set out the terms, conditions and minimum wages for the employment of musicians in Australia.
Live Performance Award 2010 covers musicians performing live, whilst the
Broadcasting and Recorded Entertainment Award 2010 covers musicians who are being recorded and/or filmed.
Please note that the minimum wages detailed in the two Awards are the legally required minimum wages that have been set by Fair Work Australia, and must be paid to all persons who are employed as musicians. These are not rates set by the Musicians Union. The Musicians’ Union recommends that professional musicians should be paid more than the minimum wage in accordance with their expertise and subsequent market value.
Current copies of the Awards are available from the Fair Work website.
www.fairwork.gov.au Rates are usually varied in July of each year but changes to the Awards can occur at other times.
EMPLOYER / EMPLOYEE / HIRER / CONTRACTOR
In employment law there are two common types of employment arrangements.
The first is where an employer will directly engage an employee for work and as a result has a large degree of control of that worker. In this circumstance the employment contract must comply with the relevant Federal and/or State Employment Legislation and Regulations which set such standards as minimum wages, annual and sickness leave, overtime and other such obligations. These contracts are enforceable through the use of the Federal Court and Fair Work Commission. One advantage to this method of engagement occurs when a contract of employment is in dispute. It is a relatively easy and cost effective process to have disputed contracts examined by the Court and Commission and a judgement determined and enforced. It is helpful that penalties may be applied to parties in breach of a direction of the Court to assist with compliance.
The second type of arrangement is where two parties agree that a service will be provided by one party to the other, for a negotiated fee. For example, when hiring an electrician to install 3 phase power to your rehearsal shed. This example uses, what can be referred to as, a Common Law Contract. In other words it is subject, not to industrial employment laws but instead, to common law principles. Here the worker is more likely to have control over when and how the work is performed. Enforcing a common law contract if in dispute is a matter for the Civil Court system. It can be costly and is often a slow, frustrating process that has no guarantees, even with a favourable judgement, of prompt settlement.
Many hirers of musicians argue that musicians are engaged by use of a common law contract as this implies the requirement of fewer obligations in regard to responsibilities towards the musician. However, many tax, superannuation and occupational health and safety laws apply even where contractors are used.
The hire of independent contractors is regulated in Australia via the Independent Contractors Act 2006. The Act contains Unfair Contract provisions, which allow a court to amend a contract if it is deemed to be Unfair. In reviewing a services contract the Court may have regard to:
- 15(1)(a) the relative strengths of the bargaining positions of the parties to the contract and, if applicable, any persons acting on behalf of the parties; and
- (b) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; and
- (c) whether the contract provides total remuneration that is, or is likely to be, less than that of an employee performing similar work; and
- (d) any other matter that the Court thinks is relevant
In order to avoid possible legal action and uncertainty the Union recommends that, where musicians are being engaged as independent contractors, they are paid at least the minimum entitlements they would receive as an employee.
It is also important to understand that industrial law requires the overall relationship between the parties to be examined in order to determine where the hire of the worker sits on the employee/contractor scale. It is not as simple as having both parties agree that their relationship is one of hirer and contractor and there are many circumstances where it can be argued that a musician is performing the work as an employee and is therefore entitled to the protections that employees are granted by legislation.
Musicians who are entering into common law contracts should be aware of what safeguards can be implemented to ensure fair and prompt payment for work performed.
The best practice is to ensure that all agreed contracts are in writing and signed by all involved parties. However, it is important to know that Common Law Contracts still exist even if only agreed to verbally. A legally binding contract exists where there is an offer, acceptance and consideration.
The Union strongly recommends that musicians maintain a ‘work diary’ of all conversations and matters relating to engagements. This should detail the time, day, detail and method of any arrangements agreed to, and with whom they were made, in regard to;
The greater the detail you have the easier it is to enforce the conditions of any contract you are a party to.
- dates of performances,
- set times,
- number of performances,
- sound check times,
- production and crew,
- occupational health and safety,
- public liability,
- settlement of payment (cash/cheque/Internet Transfer on the night? within 7 days?)
- cancellation fee. (In full if cancelled within 14 days of performance?)
- deposit (refundable or not)
- ticket details