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Arts workers: know your rights at work!

Please note that this is general information & may not be relevant to your particular matter. This toolkit should not be taken as legal advice.

 

Who is an arts worker?

The term “arts workers” encompasses a hugely diverse range of workers. People working in the arts may be visual artists, they may work in the literary arts or the performing arts of dance, music, and theatre. There are even more types of workers when you consider all the roles supporting the arts including arts administration, production crews, ticket sellers, ushers, spruikers, and festival workers. The length of the list of arts workers is only confined to the limits of human creativity.

Working out your rights and entitlements in the arts can therefore be like finding your way in a labyrinth. Because of the diversity in the nature of work performed, there are many workplace laws that govern working in the arts.

Here are some questions and answers to common issues for arts workers.

 

 

Am I an employee?

Workers in the arts are commonly engaged as either employees or independent contractors. It is important to understand the nature of your engagement as a worker because there are different legal rights and obligations depending on the working relationship. For example, some workers are entitled to minimum rates of pay and leave, while others set their own pay and must organise their own leave arrangements.

 

 

How can you tell which is which?

Employees work in someone else’s business. The employer controls how, where and when they do their work, and pays them a wage or salary. Employees are entitled to superannuation and they have payroll tax deducted from their pay by their employer. Most employees are entitlement to minimum wages and conditions from an award.

Examples: Full-time arts administration worker, an usher at a theatre, casual sound engineer at a theatre company, or a food and beverage attendant in an outdoor bar at a festival or event.

Independent Contractors work for themselves and are their own boss. They are free to set their own fee for the work that they perform and have control of when and how they work. They should have an ABN, invoice for their work, and organise payment of their own taxation. They may invoice for completion of a job rather by the hour. There is no minimum rate an independent contractor can rely on, rather they set their rates according to the free-market.

Examples: a visual artist engaged to paint and complete two large murals, or a musician playing a three hour set at a particular event.

 

Sometimes the true nature of the relationship will be obvious but sometimes a more fulsome analysis of all the circumstances of the working relationship is required. There are a full range of factors to be considered in determining whether a worker is an employee or an independent contractor.

Some employers treat their workers as independent contractors when they are really employees. For example, the employer might require the workers to have an ABN and invoice for their work, yet they are paid by the hour and directed to work certain days and times at the employer’s discretion.

It is unlawful for an employer to misrepresent employment as an independent contracting arrangement. This is known as sham contracting and it is against the law.

If a worker is in a sham contracting arrangement, they may be entitled to claim unpaid wages, superannuation and leave entitlements, and the employer may be required to pay a penalty for breaking the law.

If you think you are in a sham contract arrangement you should contact the WWC for advice.

 

Where do employees find their minimum entitlements?

Awards or modern awards are legal documents that outline employees’ minimum pay rates and conditions.

There are more than 120 awards that cover most people who work in Australia. Awards apply to employers and employees depending on the industry or occupation they work in and the type of work they perform.

Here are some of the Awards that might apply to workers in the arts and some examples of the types of work they cover:

Amusement, Events and Recreation Award 2020:
Animal attendant, Ride attendant, Tour guide, Customer Service Officer, Meet and Greet/Concierge, Photography Attendant, Host/Presenter, Admissions/Entrance attendant, Usher, Ticket seller, Security Officer, Receptionist, Programme seller, Cashier

Broadcasting, Recorded Entertainment and Cinemas Award 2020:
Television Broadcasting, Radio Broadcasting, Cinema and film production, screen actors, Musicians for film and TV, Motion Picture Production, dancer, mime artist or puppeteer

Graphic Arts, Printing and Publishing Award 2020:
Creation of designs, concepts or layouts used in the advertising, marketing of commodities or services, commercial and industrial art including illustrations, borders, retouching of photographs, photographic reproportioning and lettering by hand

Live Performance Award 2020:
Producing, staging, audio/visual, presenting, performing, administration, programming, workshops, set and prop manufacture, operatic, orchestral, dance, erotic, revue, comedy, or musical performances; includes sale, service or preparation of food or drink; and selling tickets

Textile, Clothing, Footwear and Associated Industries Award 2020:
Fashion and Textile design

 

Travelling Shows Award 2020:
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, carnival, rodeo, community event or festival

For a full list of all the moderns award and to access your award you can visit: https://www.fairwork.gov.au/awards-and-agreements/awards/list-of-awards

If you need help working out which award applies to the work you perform call the WWC.

 

 

Do I get breaks? How long should my shift be? – Common conditions in Awards

For specific information about your rights and entitlements you should find out the modern award that covers your employment. However, there are some common conditions within the awards that might apply to your work in the arts:

Breaks: Most awards stipulate that workers get a break after five hours. Some awards provide for paid breaks and others provide that breaks are unpaid. Some awards also provide for rest breaks as well as meal breaks.

Casual loadings: Most awards will provide a loading of 25% for casual workers to compensate them for not receiving sick leave, annual leave or paid public holidays.

Penalty rates: Most awards provide penalty rates which provides a higher hourly rate of pay for working unsociable hours like public holidays, late nights or early mornings and weekends.

Minimum engagement: Minimum engagement periods require that the minimum shift length must be a certain number of hours. The minimum engagement period is usually between two and four hours.

Overtime: Many awards provide that you get paid extra after working a certain number of hours in a day i.e. more than 10 hours in one shift.

We re-iterate that the conditions outline above are general and if you would like advice on your award entitlements contact the WWC.

 

 

What can I do if I’m being underpaid?

Claim the money back! There is no lawful basis for an employer to pay you less than the minimum wage in your award or contract.

You can calculate what is owed and request they pay you the difference between what you were actually paid and what the minimum entitlement should have been.

You have up to six years to follow-up wages owed to you as a result of wage theft. You can make a claim to the South Australian Employment Tribunal.

Our Industrial Officers can give you advice about claiming wages if you think you may be owed wages from a current or previous job. We also have other fact-sheets that can assist with drafting a letter of demand to your employer.

 

Sexual harassment in the arts is NOT OK!

The #Metoo Movement was born out of the art world and we know sexual harassment is a problem across the industry. The Media Arts Entertainment Alliance, the union that covers many arts workers in Australia, conducted a survey of sexual harassment, criminal misconduct, and bullying in the Australian live performance industry. The results showed that 40% of the respondents had experienced sexual harassment.

Sexual harassment is any unwelcome conduct of a sexual nature. If a reasonable person would anticipate that the behaviour might make you feel offended, humiliated, or intimidated, it may be sexual harassment.

Sexual harassment can include:

  • Sexually suggestive comments, insults, or “jokes” or imagery.
    • Requests for sex or to perform sexual acts.
    • Unwelcome touching or physical contact.
    • Intrusive questions or comments about your private life or appearance.
    • Inappropriate staring or leering.
    • Sexually explicit or harassing messages (including text or social media), phone calls, emails, or images.

Sexual harassment does not have to be ongoing and can be one, single incident.

Some instances of sexual harassment can also be criminal offences, including physical or sexual assault.

Employers should have a policy for how to deal with sexual harassment in the workplace. It may involve a complaints process and an outline of how a complaint with be dealt with. Some workplaces may not have a policy and making a complaint of sexual harassment can be difficult. For example, making an internal compliant of sexual harassment may not be helpful in a small business, where the perpetrator is also the boss or the responsible for resolving complaints.

The Equal Opportunity Commission and the Australian Human Rights Commission can hear complaints about sexual harassment and victims can make claims for compensation.

The WWC Industrial Officers can give advice you further about sexual harassment in the workplace.

 

Random Questions from arts workers

Here are some RAQs (i.e. randomly asked questions) that we have received from people working in the arts:

Is it ok to be paid in tickets to shows, drinks, food, discounts, or other perks?

No. Additional perks are great, but these must be in addition to your minimum wages.

Can I have several jobs at the same time?

It is possible to work for different employers at the same time. However, some employers do not allow it, especially if the second job is for a competitor. They may have a policy prohibiting it. If that’s the case you should ask for permission before applying for that second job.

Is it ok to drink alcohol or take drugs at work?

No. Drinking alcohol or taking drugs at work can be characterised as gross misconduct and could result in termination of your employment, even if your supervisor or other staff are doing it and there is a culture condoning it. It is also a work health safety issue.

 

Is there are union for workers in the arts?

YES! The Media, Entertainments and Art Alliance (‘MEAA’) is the union that covers many workers in the arts sector. MEAA is the union for actors, entertainers, journalists and many more workers in the arts industry.

MEAA provides members with information on their workplace rights and advocacy to defend, promote and advance members’ rights at work.

MEAA membership also includes discounts plus benefits like journey insurance as well as professional development opportunities.

You can learn more about MEAA or join online here:

https://www.meaa.org/

Contact the WWC for specific information and advice about your rights and entitlements at work.

 

Where can I get advice?

If you are a union member, call your union.

If you are not a union member, then please feel free to call the Working Women’s

Centre on: 08 8410 6499

or using our toll free number: 1800 652 697.

You can also submit an online enquiry on our website.

https://wwcsa.org.au/contact-us/

Please be aware that we may not be in a position to respond to your enquiry within 24 hour’s, but we will advise you of the waiting period when you first telephone or email us.

Your Rights At Work – A Webinar for International Students in Australia

The Working Women’s Centre has teamed up with National Union of Students Welfare Department, (FUSA Flinders University Student Association, USASA UniSA Student Association, Adelaide University Student Representative Council, Adelaide Young Christian Workers – YCW & The Young Workers Legal Service to present:

Your Rights at Work – Free webinar training for International Students in Australia

This free webinar is designed for international students studying in Australia, providing them with skills and resources to better equip them to assert their rights in the workplace and to fight exploitation.

We recognise that many international students are working casually, often well below the minimum wage and can be at greater risk of exploitation by their employer.

We also know that as the South Australian economy opens up, there will be greater competition for jobs and employers trying to cut corners.

Our team of experts will leave you with a better understanding of the Australian workplace laws and some ideas about how to address unfair treatment in your own workplace.

  • The webinar will help answer some of your questions such as:
  • What are my basic workplace entitlements?
  • What should I expect from my employer?
  • I am being underpaid, what do I do?
  • What rules does my employer have to follow? What about me?
  • Where can I get more information?
  • I have been working more than 20 hours a week, can I still complain?

Wage Theft in SA

Wage Theft in South Australia is an epidemic. The McKell Institute estimates that wage theft is costing South Australian workers $500 million a year.

The Working Women’s Centre SA recovered over $500,000 for workers in just one financial year. While this is a great achievement, it is only a fraction of what is owed to hard working South Australians. We know, more than most, that wage theft is hitting women and migrant workers the hardest.

Wage theft extends to the non-payment of base wages, penalty rates, superannuation, loadings, and the non-payment of entitlements that workers should be receiving by law. In some sectors of the economy, wage theft has transitioned from a fringe activity to a business model.

This is an issue for workers and the government. In fact, the South Australian Parliamentary Wage Theft Interim Report confirms what we already knew: wage theft is rife in South Australia and it affects the most vulnerable workers in our community.

We gave evidence to the Wage Theft Inquiry about one of our clients who was only paid $14 an hour. How can you live on $14 an hour? You can’t. It isn’t a living wage.

In response to the Interim Report, we are holding a community discussion about the prevalence of wage theft to kick start South Australia’s response to this issue.

There are big questions at hand:
• Should we follow Victoria’s lead and criminalise wage theft?
• Is our industrial system is too complex?
• How does wage theft impact on working women? And is this impact due to a common business model?
• What are trade unions doing about this issue? And how do we campaign for a living wage?

We are thrilled to host Irene Pnevmatikos MLC, Edward Cavanough from the McKell Institute and Angas Story from SA Unions to tackle those issues and more.

We acknowledge that this event will streamed from Kaurna land and we pay our respect to the traditional custodians of the land past, present, and emerging. Sovereignty was never ceded

Template for how to write a letter of demand

Instructions
Do not include this first page of instructions in your letter of demand. Delete this section after reading it.

This letter sets out how to write a letter of demand for underpayment of wages, as well as annual leave or notice.

Insert details relevant to your underpayment in the highlighted sections, and delete the parts that aren’t relevant to your claim.

Send the letter to your employer via post or email and keep a record of when you sent it. The letter can be used as evidence to help your underpayment claim, as well as a claim for penalties, in the South Australian Employment Tribunal. 

This is a template and might not cover the extent of your underpayment issue. That is, this template talks about very specific breaches and in your case, there might be other breaches that you need to allege.

This letter is a guide and should not be taken as legal advice. 

[date]

[employer’s address or email]

Dear [name of owner of business]

RE: – Underpayment of wages 

I write regarding my employment with [name of business]. I have been underpaid by you as follows:

[List the different types of underpayment. For example:

  1. Underpayment of wages: $XXX 
  2. Underpayment of superannuation: $XXX
  3. Unpaid annual leave: $XXX
  4. Unpaid notice: $XXX

[Explain how you calculated these amounts. For example if you were paid at the incorrect classification under your Award:]

You did not pay me at the correct award rate. For the period of [start date] to [end date], you paid me [the rate you were paid] an hour. However I should have been paid at [classification level] of the [your Award], as my duties included [list the higher duties you performed]. The total amount owing for underpayment of wages is $XXXX. 

[Example if you were underpaid notice or annual leave]

You also did not pay my [annual leave / notice] of [X number of] weeks. The total owing to me for annual leave is $XXXX. My entitlement to [ annual leave / notice ] can be found in the National Employment Standards.

The total amount that should have been paid to me was [$XXXX your correct total payment].  You paid me [$XXXX what you were actually paid].   There is a total amount of [$XXXXX amount of underpayment] owing to me.

I request that you make the total payment of [$XXXX amount of underpayment] to me within 14 days of this letter.  

If I do not receive payment within that time, I put you on notice that I will be commencing proceedings for unpaid wages against in the South Australian Employment Tribunal (SAET) without further notice. 

If I am forced to commence proceedings against you, I will be seeking an order from the SAET that you pay pecuniary penalties for your various breaches of the civil remedy provisions of the Fair Work Act 2009. 

It is hoped that this will not be necessary, and I look forward to a quick and amicable settlement of the outstanding unpaid wages. 

Regards,

[your name]

[your contact details]

 

Underpayments: Have you been paid correctly?

Please note that this is general information & may not be relevant to your particular matter. This should not be taken as legal advice.

 

What is wage theft?
Wage theft is the failure of an employer to pay a worker their wages or entitlements, such as superannuation, penalty rates, loadings or allowances under workplace laws. It impacts up to 170,000 South Australian workers and collectively costs more than $500 million a year.

Findings from “The Economic Impact of Wage Theft in South Australia” published by The McKell Institute, in March 2019.

 

If you feel your current or former employer has underpaid you by:

  • Not paying you at the correct award rate;
  • Not paying you penalty rates or the incorrect rate;
  • Not paying you allowances or other loadings;
  • Not paying your superannuation
  • Not paying the correct notice upon termination of your employment
  • Not paying the correct amount of redundancy pay
  • Not paying out your long service leave or annual leave entitlements correctly

Then you may be able to lodge a Money Claim in the South Australian Employment Tribunal

(SAET). You may also be able to lodge a small claim in the Fair Work Division in the Federal Circuit Court.

 

You have six years from the date of the underpayment to make a claim.

 

Part 1: Figuring out what you are owed
You will need to find out the wage to which you are legally entitled. This will either be set out in a Modern Award, in your contract of employment or in an enterprise bargaining agreement. These are explained below. All employees, as a minimum, are entitled to the National Employment Standards.

The National Employment Standards set out the 10 minimum employment entitlements that must be provided to all employees, including the national minimum wage, and other entitlements such as leave, and flexible working arrangements. Casuals and permanent employees have different entitlements. Find out more on the Fair Work Ombudsman website:

https://www.fairwork.gov.au/employee-entitlements/national-employment-standards

 

 

Modern awards
Most employees are covered by an award. There are 122 modern awards in Australia. An award is a legal document that sets out the minimum pay rates and conditions of employment for an industry. Awards are not specific to your employer but rather specific to your industry/sector. The Fair Work Commission sets the conditions and rates found in the modern awards. The Fair Work Commission reviews all 122 awards every 4 years. Different awards apply for different industries and job types.

You can find your award and your correct pay rate on the Fair Work Ombudsman site:

https://calculate.fairwork.gov.au/findyouraward

If you are unsure if the award applies to you, check the coverage clause (usually clause 4)

and the job classifications (usually in the pay clause or a schedule) to read more about the

types and levels of jobs it covers.

All awards are available in full on the Fair Work Commission website.

 

 

Enterprise Agreements
Enterprise bargaining agreements (EBA), and other registered agreements such as individual flexibility arrangements, are negotiated between employees, employers and most often unions. They set out minimum employment conditions for employees of an employer. The law says that an EBA must leave an employee better off overall when compared to the relevant award. EBAs are voted on by the workforce and there should be a copy of your EBA made available to you, if one applies.

If your workplace has an EBA, you should check it first to find the wage to which you are entitled. Some agreements state that the award doesn’t apply, and provide better entitlements than the award. The base pay rate in the agreement can’t be less than the base pay rate in the award and the National Employment Standards still apply.

Other agreements may say that the award applies, where the agreement does not include detail about your entitlements. In this case, refer to your award.

Find your agreement on the Fair Work Commission site. https://www.fwc.gov.au/search/document/agreement

 

 

How to calculate your underpayment
Examine your payslips or other records (like rosters, bank statements, cash receipts) to figure out how much you were paid, and how much you should have been paid for the hours you worked under the award or your workplace’s registered agreement. The difference in these two figures is the amount you can claim as an underpayment.

You may find it helpful to use an Excel spreadsheet or table to calculate the underpayment per pay period. If you do not have full records of your hours worked, you can use a reasonable estimate.

Remember that you can claim other unpaid entitlements, such as superannuation, annual leave, long service leave, and notice. If you are claiming unpaid wages, you can add superannuation of 9.5% (or the amount listed in your registered agreement) of the underpayment amount to your claim.

Your underpayment is calculated as follows: (legal entitlement) minus (actual wages paid) = (underpayment figure).

 

 

Case Study (example) *Phuong’s underpayment
*This case study is fictional,  – CHECK TO GET DISCLAIMER LINE HER

Phuong is a permanent part-time employee in a restaurant. She works 20 hours a week. She is paid $15 per hour.

Phuong’s duties include taking reservations, mixing and serving alcoholic drinks, waiting on tables and helping to supervise junior staff. She examines the Restaurant Industry Award 2010, and realises that her duties are classified at “Level 3 – food and beverage attendant”. Under the Award, she should have been paid at $26.93 per hour during the day, $32.31 per hour on Saturdays and $37.70 per hour on Sundays and public holidays.

She goes through her payslips and her time sheets and calculates that over the period of her employment, she was paid $15,600. However, if she had been paid at the correct award rates, she should have been paid $26,603.

Phuong’s underpayment of wages is $26,600 (legal entitlement) minus $15,600 (actual wages paid) = $11,000 (underpayment figure).

She adds an additional 9.5% ($1045) of this amount to her claim as unpaid superannuation.

 

Other entitlements
When Phuong was fired, she was not paid out her annual leave or given notice. She is owed 3 week’s annual leave and should have been paid one week’s notice. She adds an amount for annual leave ($1534) plus notice ($511.60) to her claim.

Total underpayment Phuong adds up these amounts to calculate the total amount she can claim as an underpayment.

 

Her total underpayment is:
Unpaid wages: $11,000
Unpaid superannuation: $1045
Unpaid annual leave: $1534
Unpaid notice: $511.60

TOTAL: $14090.

 

Part 2: Negotiating with your employer
If you have not already raised the underpayment with your employer, you should do so. If your employer is cooperative, this is the easiest way to rectify the underpayment.

If your employer refuses to pay you what is owed, you should formally request that the money be paid in writing. This is called a letter of demand. By putting the employer on notice that you intend to pursue the underpayment through the relevant tribunal (SAET) or court (Federal Circuit Court) they don’t pay, they may be liable to pay additional penalties if your claim does not settle.

An example letter of demand is set out below. This letter of demand threatens a claim in the SAET. List the amounts you are owed and explain why you think you are owed these amounts, with reference to the correct rate. You can attach your calculations to show how you arrived at the underpayment figure.

Letter example

Dear Mr Boss,

I write regarding my employment with your business. I have been underpaid by you as follows:

1. Underpayment of wages: $11,000
2. Underpayment of superannuation: $1045
3. Unpaid annual leave: $1534
4. Unpaid notice: $511.60

You did not pay me at the correct award rate. For the period of 1 July 2019 to 30 June 2020, you paid me $15 an hour. However I should have been paid at Level 3 of the Restaurant Industry Award 2010, as my duties included working in the bar serving alcohol, and helping to train and supervise junior staff. The total amount owing for underpayment of wages is $11,000.

When you dismissed me on 30 June 2020, you did not pay me notice. You owe me one weeks’ notice which is $511.60. My entitlement to notice can be found in the National Employment Standards.

You also did not pay out my annual leave of 3 weeks. The total owing to me for annual leave is $1534. My entitlement to annual leave can be found in the National Employment Standards. The total amount that should have been paid to me was $29,690.

You paid me $15,600. There is a total amount of $14090 owing to me. I request that you make the total payment of $14,090 to me within 14 days of this letter.

If I do not receive payment within that time, I put you on notice that I will be commencing proceedings for unpaid wages against in the South Australian Employment Tribunal (SAET) without further notice.

If I am forced to commence proceedings against you, I will be seeking an order from the SAET that you pay pecuniary penalties for your various breaches of the civil remedy provisions of the Fair Work Act.

It is hoped that this will not be necessary, and I look forward to a quick and amicable settlement of the outstanding unpaid wages.

Regards,

Phuong

 

Part 3: Lodging a Money Claim
If the employer does not pay by the date set out in the letter, you should lodge a claim.

There are two places which can deal with an employee’s claim to underpayment of wages.

The South Australian Employment Tribunal (SAET) is South Australia’s forum for resolving underpayment of wages, and other work-related issues.

You can lodge a Money Claim for your underpayment. See their website for more information.

https://www.saet.sa.gov.au/industrial-and-employment/money-claims-monetary-claims/

In some circumstances, you may instead wish to lodge a small claim in the Federal Circuit Court. The Federal Circuit Court also has the power to deal with these disputes. If your claim is under $20,000, and you wish to claim money against the director personally as well as the business, you can consider lodging a small claim in the Fair Work Division of the Federal Circuit Court.

Seek advice from us or a lawyer if you are considering taking this option.

 

 

How to take action on: Wage theft & Violence in the workplace

The shocking video that many people saw earlier this week is unfortunately a familiar story of wage theft and gendered workplace violence that is common in our South Australian workplaces. Now that a spotlight has been put on the issue, we have the opportunity to change things for the better.

Will you join us and seize this moment, take action and make your voice heard?

How to take action on: Wage theft & Violence in the workplace

Protesters rally to support woman allegedly assaulted at Adelaide business

This article was published by ABC News 4th Feb 2021.

Read the full article on the ABC’s website here

Protesters have rallied outside of a cafe where a young woman was allegedly assaulted last week.

Footage of the incident, at Fun Tea in Adelaide’s CBD, went viral on social media and has sparked a conversation about alleged wage theft among the international student community.

It showed a verbal dispute between a man and a woman who makes claims about wage theft.

The man can be heard denying the claims.

Today, protesters claimed wage theft was a problem in businesses in Adelaide’s Chinatown district.

Jackie Chen, from the SA Labour Info Hub, said many people working within the district were paid less than $15 an hour, and some as low as $5 an hour.

“Especially with the background of workers, international students, they are not fluent in English and they don’t know how to find support,” he said.

“We urge the Australian Government to look into these issues.

“We must sort this out, it’s a disaster. It’s been going on for decades.”

He has organised another rally for Saturday to be held in Chinatown.

How to take action on: Wage theft & Violence in the workplace

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