Competition at all levels in the freelance workforce means workers often feel obliged to consent to infringements of their rights because not to do so means not being employed. They are unable to act when a company treats them illegally because they know it will affect their future employment prospects. Alongside this, we believe the main official bodies within the industry have failed to take up the issue, resulting in a conspiracy of silence where people feel exploited but are unable to do anything about it.
There are three main areas where some TV production companies are failing to meet their legal obligations:
• Failing to pay employees the national minimum wage (NMW);
• Failing to provide legal entitlement to paid holiday;
• Working employees in excess of the 48-hour working week without the necessary consent.
Failing to receive the NMW happens mostly in one of two ways:
• The work is completely unpaid (or ‘expenses only’);
• The agreed weekly or daily level of pay would be higher than the NMW were the employee working reasonable hours. However, the employee works such long hours that the actual rate of hourly pay falls below the legal minimum level.
Unpaid labour is a now a consistent feature of the TV production industry. This happens at all grades, but most often in the position of ‘runner’, the entry level to the industry.
The job of a TV runner has evolved over the years. A few years ago they would be employed on productions simply to fetch things – mostly to make teas and coffees for the crew. Now runners are fully-fledged member of the production team, usually working as junior researchers, drivers, floor assistants and prop buyers. These are not trainee positions – apart from there rarely being a training programme or assessment process, in most cases production would not be able to function effectively without them. Although they are completely wage-free, the competition to take up these kinds of opportunity is fierce. In most cases, runners’ positions are advertised, candidates are interviewed for their suitability, and skill levels are set for the work (for instance, many stipulate that candidates must be able to drive).
Many companies claim that when they take on unpaid runners, these people are benefiting by being ‘trained’. In reality this is not the case. From day one a runner is usually expected to contribute to the production. It is true that they get the opportunity to see how a production works from the inside, but there is almost always no training plan, no formal structure and no assessment process. This is not ‘training’ by any meaningful definition of the word. It also does not fulfil the criteria for a trainee as set out by NMW legislation. However, they do fulfil the definition of a ‘worker’ under the legislation. They usually work set hours and are there primarily for the benefit of the production rather than for their own training.
From an employers’ point of view budgets are now so tight they will seize any opportunity they can to cut their wage bill. As so many production companies use unpaid staff, employers know that to remain competitive they too have to fund their production in this way. As a result, budgets remain low and ethically minded employers are prevented from changing their practices.
There has been no legal action to date where employers within the TV industry have been prosecuted under the NMW legislation. This is because, in an industry that relies heavily on ‘word of mouth’ recommendations and reputation, no TV freelancer can risk taking legal action. Runners know that if they complain about the lack of pay, there are plenty of others more than willing to take their place.
Because these jobs are unpaid, it is often only those with independent means, or parents wealthy enough to support their children, who can take up such work. As a result, the industry finds itself increasingly drawing from a pool of labour that is undemographically slanted towards the wealthy. This will inevitably affect the way programmes are made. Since October 2001 every working person in Britain has been entitled to 20 days paid annual leave per year. This was enshrined in the Working Time Regulations (WTR), subsequently amended to include even freelancers.
In practice, a large number of TV production workers still receive no holiday entitlement or pay. This happens mostly in one of two ways:
• Contracts either do not mention holiday pay or state that it is not due;
• Employers negotiate a fee with their freelance staff and then, when the contract is issued, allocate a proportion of the rate to ‘holiday pay’; it is unlawfully ‘rolled up’.
Here’s a quotes from a PACT member’s employee contract: “…we shall as inclusive remuneration and as full and complete consideration for all services rendered and for all rights consents and benefits assigned and granted by you to us hereunder pay to you a gross total of £______ per week, of which one twelfth is made up of Working Time Regulations entitlement.”
The WTR state that workers cannot be forced to work for more than 48 hours a week on average unless they opt out. In order to opt out, an agreement must be in writing and signed by the worker. An employee continues to have a statutory entitlement to a minimum average of 90 hours rest per week. However:
• Some TV production companies are failing to include the ‘opt out’ in their contracts of employment and then working their staff for longer than an average of 48 hours per week. Research undertaken in the last month has shown that 58 per cent of freelance TV professionals consistently work more than a 48-hour week.
• Where the opt-out is included, this is put in a contract not seen or agreed till after the job has begun, rendering it no longer optional.
• While the programme is in production, no checks are made on employees’ working hours and no records kept. As a result there is no monitoring of those who work without the statutory rest breaks.
• Although the regulations specify that signing up to the opt-out is optional, where it is present in a contract it is effectively a requirement for the job – in practice, not to agree means that the job offer is withdrawn.
• Some freelancers (3 per cent in the survey) are denied the 90 hours minimum statutory weekly rest.
The petition we handed to Downing Street was originally placed on the TV Wrap website. It was signed by around 2500 freelance workers in the industry and calls for action to remedy this situation. The campaign is being supported by many leading figures and organizations in the TV industry, including The Directors Guild of Great Britain, BECTU, the NUJ, Women in Film and Television, the Musicians Union, The Institute of Broadcast Sound and The Guild of British Camera Technicians. Michael Grade and Greg Dyke have both agreed that something needs to be done.
I met the other members of TV Wrap via the website Production Base. After an online chat about working conditions we decided that, instead of just talking, it was time something was done about it. We received a lot of examples of abuse after we set up the site. Here are a few typical examples:
• A runner who worked anything from 11 to 15 hours a day, six days a week, on a prime time factual show. When he calculated his pay from one of the longest weeks he worked, it came out at a rate of £3.05 an hour, well below the minimum legal wage. “The thing that really got to us,” he said, “was that we were expected to drive a lot in the job, and after a 90 hour week you are unsure how safe you are behind the wheel.”
• “I have worked since I was 13. I have waitressed, cleaned toilets, chambermaided, photocopied, served drinks, ironed, babysat and more. However, the systematic abuse of reasonable working conditions that I have experienced in my past year in TV far exceeds the combined total of all of my previous 11 years of employment.”
• “I worked on a large reality show last year which left me close to mental and physical collapse. I worked 18-hour days as a matter of course and averaged five hours’ sleep. The demands on me and the team I worked in were at best ludicrous, and yet any failure to deliver was punished daily by public humiliation.”
Our aim is to see an end to illegal employment practices in the industry, which up to now has been governed by voluntary codes of behaviour. The problem is that many companies faced with falling budgets ignore any kind of guidelines. We believe there needs to be a compulsory code of conduct and that broadcasters, when they receive the shows they have commissioned, should check that the have been made in a legal and fair way. This would mean production companies having to submit all the employee contracts and working hours of the employees. It is the only way everyone can be sure that everything is above board.
PACT, the producers’ body, at first flatly denied that there was any basis to our claims. They were then met with a huge tide of opinion, which made their leader John McVay back down. We were frankly surprised by this huge response – it seems that there is a very widespread feeling in the industry that enough is enough.
However, nothing has been done about the situation yet – the whole industry is waiting to see what PACT plans to do about it. We met with Ofcom who did not want to get involved; however, we are waiting to hear back from the various broadcasters to whom we have sent a suggested code of behaviour. The proposed code of conduct has three main points:
• Unpaid work experience should always meet the requirements of NMW and should always have a demonstrable training element.
• All employees should receive proper paid holiday as specified by the WTR. All rates must be negotiated and agreed exclusive of holiday pay, which is then added.
• All employees should work an average of no more than a 48 hour working week, with a rest break of at least 11 hours and one day off a week. Any 48 hour opt-out should be agreed before a contract is issued.
If you would like to find out more about us, go to www.tvwrap.org.uk.