New Laws To Better Protect Performers In Dealings With Agents

If you work as a performer in the entertainment industry, being represented by an agent definitely has its advantages – as long as they are working in your best interests.

At the moment, the law which offers some measure of protection for performers in their commercial dealings with agents is the Entertainment Industry Act 1989 ('the Act'). It introduced a licensing scheme in New South Wales where agents and managers need to obtain a licence before being allowed to work in the industry. However, a recent reviewof the Act identified many problems and recommended the introduction of many reforms to this law – a position which the NSW government agrees with.

The review of the Act was conducted by the Better Regulation Office (BRO). Various organisations, including the Arts Law Centre, made submissions to the BRO to consider in the review. The review made several recommendations which were approved by the NSW government in their final report on the Act and its review. In total 25 recommendations were made, the common thread throughout being that they aim to bring about more simplicity, higher levels of accountability and better protection for performers. This necessarily entails increased obligations for those who represent performers.

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So what are some of the problems prevalent in the present state of the law? Here are some examples:

• There is considerable non-compliance with the Act and it is difficult to enforce. Despite the current licensing scheme (which no other state has), there are numerous reported cases of individuals who have been able to represent performers without first obtaining a licence. Circumvention of the Act is relatively easy and defeats the purpose of introducing the licensing scheme
   
• A related problem is simply the lack of transparency and accountability in the way agents and managers represent their performer clients. For example, there is little regulation on the fees representatives can charge. Also, where there is a conflict of interest (such as when an agent is working for both a venue and performer in the same transaction, and being paid by both), there is no requirement on the agent to disclose this.
   
• Significant elements of the Act are either outdated or inoperable. For instance, the Act contains provisions which seek to establish a code of ethics and complaint procedures. To this date they still have not been introduced.

A number of recommendations have been made in an attempt to remedy such problems with the Act. Here are some of the important recommendations arising from the review:

• The licensing scheme for agents and managers should be abolished (Recommendation 24);
   
• The fuzzy distinction between the roles of 'agent' and 'manager' should be removed. The new amendments to the Act should fuse these two categories into a single profession called a 'performer representative' (Recommendation 1);
   
• Generally, representatives should not be allowed to charge a performer more than 10% of their income from performances. If the performance goes beyond five weeks, then the fee charged after this period (for a musical and variety performance work) is to be capped at 5%.
• The rationale for this is that most of the representative's hard work would have already been performed at the beginning of this deal; hence, a reduced agency-fee after five weeks is more realistic and reflective of the commercial reality (Recommendation 2);
   
• Performer representatives should no longer be able to charge a performer fees for joining and auditioning. Nor will they be able to charge an ongoing representation fee (Recommendation 3);
   
• Performers would need to be paid within one calendar month, unless there is a written agreement to the contrary. Representatives would also need to keep financial statements and disclose any conflicts of interest in order to have increased accountability and transparency (Recommendations 5 to 7);
   
• The Act should be amended to enable NSW Industrial Relations to deal with complaints of misconduct (Recommendation 15). In addition, NSW Industrial Relations should be given the power to ban individuals or companies from acting as performer representatives, and introduce an online 'name and shame'. This list should detail the representatives who have been fined, prosecuted and banned (Recommendation 16).
   
• Performer representatives should make available information about the performers' rights and complaint / dispute resolution mechanisms for their performer clients. This will be aided by the publication of easy-to-understand fact sheets by NSW Industrial Relations on this issue (Recommendation 10);
   
• Financial records of performer representatives should kept for five years at their principle place of business so that NSW Industrial Relations can access it if the need arises (Recommendation 11-12);
   
• The code of conduct, which the current Act aimed to introduce, should finally be implemented. It should cover things such as ethical behaviour and minimum competency requirements, and introduce penalties for misconduct and failure to comply with the code (Recommendation 14);
   
• The Act should be amended to state that any performers who want to bring proceedings against performer representatives for an offence must do so within 12 months of the offence occurring (Recommendation 21);
   
• Finally, given the changing nature of the industry, the effectiveness of amendments to the Act should be reviewed after 3 years of operation (Recommendation 25).

If you would like more information about the recommendations and how the Entertainment Industry Act will be amended, the background to the reforms and the final report can be accessed online.

These welcome, overdue reforms will undoubtedly offer much greater levels of protection to people working as performers in the entertainment industry. It is anticipated that the amending legislation giving effect to the above recommendations will be introduced within the next year. Until then, the Arts Law Centre will endeavour to bring you the latest updates on this issue as they arise!

David Chau is a Paralegal at the NSW Crown Solicitor’s Office