Acting up for fair pay bears fruit

The Competition Commission has granted a conditional exemption from some aspects of the Competition Act to allow actors and freelance workers in the film and television industry collective bargaining rights. 

The commission has granted the conditional exemption for five years.

The South African Guild of Actors, (Saga) an organisation that represents professional actors, and the Personal Managers Association, which represents actors’ agents, filed the application in 2022 after recognising the unfair conditions that actors had to work under, especially concerning their rates and payment. 

Saga, which supports actors’ and artists’ rights to fair pay, working conditions and benefits, has more than 500 members. 

The decision was published in the Government Gazette in January.

People in the film and television and the performing arts industries are independent contractors, not employees, and are covered under contract law, and not labour law, in South Africa, so they do not have the same rights as other workers, and often work under the assumption that they will enter into a contract with a producer with equal bargaining power, but this has not always been the case, Saga representing attorney Kelly Kropman said. 

In the film and TV  sector, the producer is considered the customer and the actor and crew members are service providers. In competition law independent contractors are not permitted to collectively bargain as this is broadly considered anti-competitive and to the prejudice of the customer. “The difficulty that we face in this industry is that the customer tends to dictate the price for the service provider,” Kropman told the Mail & Guardian. 

“Producers will go to actors and hand them a contract and say: ‘These are the conditions of work. This is the rate. Take it or leave it.’”

The case that was argued before the Competition Commission highlighted that customer-service provider relationships in the film and television industry are different from other industries, and so “there is exploitation of the service providers by the producers in some instances”. 

Kropman said the exemption enabled Saga to engage with other players to create industry-recognised minimum standards. 

She added that they had also been in talks with the department of employment and labour. 

Its co-founder and secretary Carlynn de Waal-Smit said many people think the film and TV sector is “glamorous” but, because it is not regulated, there are many injustices behind the scenes and this has been going on for a long time. 

“For many years, we’ve been trying to self-regulate as much as we can but we can’t self-regulate because of competition law, unfortunately. The bargaining power between the producers, broadcasters and the actors is so skewed that we hold absolutely no power in being able to negotiate agreements for any of the work, in an unregulated industry,” she told the M&G.

“That really puts actors in a position of powerlessness in many ways.”

A high-profile case highlighting the issue goes back to October 2014, when 16 cast members of South African soapie Generations were fired after they went on strike, demanding bigger salaries and extended three-year contracts. 

They also demanded royalties from episodes that had been re-broadcast, as well as syndication fees resulting from the sale of Generations outside of South Africa.

De Waal-Smit said the exemption granted by the Competition Commission enabled actors to negotiate a fair rate that is based on their experience and the role they are playing in a production. 

She said that some rates were outdated and needed rethinking. 

“One of the biggest things we are lobbying the department of employment and labour for is collective bargaining rights, because once we have [that], people have to sit down in a room and negotiate with us.

“What the exemption has done is it has allowed us to basically dodge the impact of the collusion and price fixing that would come if we didn’t have it,” she added. 

They were going to engage with independent producers, commercial producers, theatre producers, managers and other key stakeholders. 

The Commercial Producers Association of South Africa (CPASA) and the Association for Communication and Advertising (ACA) have jointly served an application to appeal the decision of the Competition Tribunal.

ACA told the M&G it had “lodged an appeal on legal advice, as the broader ecosystem, including the advertising and production sectors, were not considered in this decision”. 

“Any regulatory changes should be based on a thorough assessment of industry-specific dynamics to ensure fair and practical outcomes.”

CPASA could not provide a response to questions from the M&G.

Kropman said the Competition Tribunal will decide whether or not the Competition Commission’s decision was sound since it’s been appealed. She said the matter could be further appealed to the Competition Appeal Court, and then the Constitutional Court if there is reason to.

Althea Greenland, chairperson of the PMA, the second applicant, said the exemption was a breakthrough for South African actors and their representatives. 

“By granting this exemption, the Competition Commission has acknowledged the necessity of collective advocacy in an industry where individual actors hold little bargaining power.

“Moving forward, the PMA remains committed to working alongside Saga and industry stakeholders and industry organisations to establish fairer industry standards, safeguard professional performers and promote ethical business practices that benefit the entire entertainment sector.”

Gwen Ansell, freelance writer, writing teacher, media consultant and creative industries researcher, said the ruling was important because it “spotlights the way in which all project-based creative work is conducted outside the ambit of South Africa’s labour relations regime and the abuse this can give rise to”.

A national survey conducted last year for the Southern African Music Rights Organisation found that women musicians — often subject to some of the most egregious abuses — wanted artistic work to be brought into all the relevant legal frameworks around labour and pay. 

“Attention to this issue is long overdue,” Ansell told the M&G. 

“This one ruling will certainly benefit those who brought the case. But we need national, and enforceable, action from government policy-makers to redefine and regulate all project-based artistic work, so that actors, musicians and others automatically enjoy the full protections of the law, without constantly having to bear the cost of individual lawsuits to claim those protections.”