EMPLOYMENT SYSTEMS AND SOCIAL PROTECTION

Legal frameworks within which artists and creators may be employed:
a.   Public sector employees : no artists are employed as public sector employees.
b. “Salaried employees” with an employment contract : these generally apply to artists who are employed as members of companies on at least year-long contracts e.g. orchestras, dance companies and opera companies.
c. “Freelance workers” with a service provider contract : this is the primary nature of employment contracts for artists in South Africa.
d.  Specific status: there is no legal framework of employment specifically for artists.

There is no obligatory status for the employment of artists.  The most common practices are:
- Performing arts (music, opera, dance, theatre) and film: freelance workers with short-term employment contracts.  Those who are salaried employees tend to be the staff who administer and work as operational staff within cultural institutions such as theatres, galleries and museums.
- Writers: project-specific commissions or contracts with publishers.
- Visual artists: agency contracts with galleries that market and sell their work.

The uncertain, project-based nature of current arts funding means that it is nearly impossible to employ artists on medium to long-term contracts.  Since 1994, there has been a rapid decline in large-scale companies that provided medium-to-long term employment for artists.  New performing arts companies that have emerged offer - at best - year-long contracts that are reviewed in the light of the company’s success with regard to fundraising in the preceding year.

Subsidised theatres have their core infrastructure funded by government, but not production budgets. This is also a significant contributor to the primary nature of employment in the performing arts which is on short-term, project- or production-specific contracts.

However, most artists are self-employed and generate their own work.  Recent research conducted by the Performing Arts Network of South Africa (PANSA) revealed that at least 60% of artists initiate their own work, without this having been commissioned by theatres, festivals or other institutions.

Where salaried employment exists, this is mainly within the performing arts.  Since 1994, the trend – strongly brought about by declines in state subsidies and administrative challenges in the distribution of funds that are available – has been away from salaried employment towards self-employment and self-generated work.  This is generally the case among writers and visual artists too where salaried employment is very rare.

Laws governing this legal framework
The Labour Relations Act, n°66 of 1995 governs employment. The Basic Conditions of Employment Act, n°75 of 1997 governs the working conditions and social benefits of workers.  These laws are applicable to all workers.  There are no employment laws specific to cultural workers.

Effects of the legal framework applied
 (a) In the event of breach of contract or dismissal
Chapter 8 of the Labour Relations Act, 1995 deals with dismissals.  It prohibits employees from being unfairly dismissed. Unfair dismissal includes the termination of a contract of employment if the employee participated in or supported a legal strike or protest action, or if it is related to the employee’s pregnancy, or if it is done on discriminatory grounds such as race, gender, ethnic or social origin, sexual orientation, age, disability, religion, political opinion, language, marital status or family responsibility.

In the case of a dismissal, the employer must prove that the dismissal is fair (fair dismissals are related to the employee’s conduct or capacity or to the employer’s operational requirements).  If there is a dispute about the fairness of a dismissal, such disputes are referred to the Commission for Conciliation, Mediation and Arbitration (CCMA).

If a dismissal is found to be unfair, the employer may be ordered to reinstate the employee or the employer may be ordered to pay compensation to the employee.
However, the Labour Relations Act applies to salaried employees, and not to “independent contractors”, a category into which most practicing artists would fall currently.

(b) On the right to combine a permanent post as artist with another job
There is no law that prohibits artists from combining permanent with other posts.  Many educational institutions attract high profile artists (visual artists, composers, choreographers and writers in particular) to teach at their institutions by making it possible for them to have security of tenure as educators, but provide them with sufficient space, time and resources to create their own work.

(c) On social welfare
Salaried employees generally have access to social benefits such as medical aid, pension schemes and unemployment insurance through their company.  Intermittent workers or independent contractors have to take responsibility for these themselves.

(d) On intellectual property rights
Salaried employees generally forfeit their designs and intellectual property to their employer, while independent contractors own their intellectual property unless this is assigned to an employer as part of the contract.

(e) On the right to form or join a trade union
Section 23 of the Constitution of the Republic of South Africa, n°108 of 1996, guarantees freedom of association and the right to engage in collective bargaining.  The Labour Relations Act, 1995 gives employees the right to form a trade union or federation of trade unions, and to join such a union.  It also gives the right to every trade union member to participate in all the lawful activities of the union, to stand for election, to participate in elections for office-bearers, to be appointed as a trade union representative and to carry out the functions related to being such a representative.

Recruitment of artists
This varies from discipline to discipline. 
- Craft: crafters work as individuals or in co-operatives and are contracted by retail outlets to produce particular products.
- Dance: compared with other performing arts disciplines, there are numerous professional dance companies offering salaried employment.  Dancers are hired either after completing a training programme with the dance company or after an audition.
- Film: Actors are hired through casting agents.
- Literature: Publishers develop relationships with particular writers and enter into contractual arrangements with them to produce a single book or a range of books depending on the popularity of the writer.
- Music: Record companies sign up musicians and manage their careers.  Independent promoters have a range of musicians contracted to them, and whom they promote through live concerts and other events.
- Theatre: Actors are hired through artist agents or are directly contracted if they do not have agents.
- Visual arts: Visual artists are generally associated with particular galleries who promote and sell their work.  They are not employed or hired by these but may be commissioned by them to do work, and may be paid an advance to do so.

Status of intermediaries
There are at least 15 artist agencies nationally that serve as employment brokers for actors.  This work includes theatre, voice-overs for television and radio commercials, films and television series, serving as Programme Directors (MCs) at high profile functions, etc.  The primary function of these agencies is to serve as a contact and fee-broker between the artist and the potential employer.

Casting agents operate in the film and television commercial world, and they contact artist agencies to provide actors according to a particular brief, who are then auditioned and selected by the directors of these films or commercials.

Mode of remuneration
Generally, artist agencies take a percentage of the fee paid to the artist for a particular job. 
For theatre, artists’ agencies will take between 0-15% of the fee as commission (0% in the cases of some agencies as theatre remuneration is considered to be so low as to not be worth it), while for film and commercials, agencies generally take 15% of the fee.
Galleries take between 40% and 50% - and sometimes more - of the price of works sold by artists through their galleries.
 
There are few arts-related trade unions at the moment, and those that exist are relatively weak.  Generally, where they exist, they essentially represent and advise their members on contractual issues and do not seek to secure work for their members.

Professional status
There is no system to recognize “professional” artists.  Barriers to entry to the creative industries are non-existent with those trained at tertiary institutions competing on equal terms with those who have had no formal training, or limited training in non-formal institutions or training through in-service opportunities.

Historically, given the apartheid divides and the discrimination against black people within the arts too, notions of “professional” and “other” artists have tended to be divisive along racial lines with “professional” referring essentially to white, trained artists and “community” artists referring to black, generally un- or undertrained artists.

There is the beginnings of a shift towards understanding “professional” as a reference to all those who seek to make their living within the arts, whether in a mainstream or community-based context, whether as trained individuals or simply as talented artists with little or no training.

There is no body or authority that confirms such status, although, in practice, theatres, festivals and funding bodies do tend to distinguish between applications from professional and from non-professional or amateur groups and practitioners.

Work contracts
Form and content of contracts
The Basic Conditions of Employment Act, 1997 require an employer to provide the following in writing at the time of employment:
i) the full name and address of the employer
ii) the name and occupation of the employee, or a brief description of the work for which the employee is employed
iii) the place at which the employee is required to work
iv) the date on which the employee will begin work
v) the employee’s working hours
vi) the employee’s wages
vii) the rate of pay for overtime
viii) any cash payments or payment in kind that the employee is entitled to
ix) the frequency with which remuneration will be made
x) what deductions will be made from the employee’s remuneration
xi) the period of notice required for the termination of services, or if employment is for a specific period, the date on which the employment will end
xii) a list of documents that form part of the contract of the employment

The above applies to salaried employees in the arts e.g. members of dance groups, orchestras and opera companies on at least year-long contracts. 

Contracts between independent contractors (essentially artists who work intermittently) and theatres, festivals, galleries, publishers, etc are not mandatory in terms of any law.  In practice, however, written contracts are the primary means used to secure and define the nature of services and remuneration between artists and their intermittent employers.

Where contracts are exclusive, they are
i) to ensure that a particular film company or theatre have exclusive production rights to a particular script for a period ranging from 1-3 years
ii) to ensure that a gallery is the exclusive agent for a particular artist until this is terminated by one of the parties
iii) to ensure that a publisher has right of first refusal to the works of a particular author

Generally though, in some cases e.g. film and theatre, it is the creative product to which producing agents have exclusivity, while in visual arts, publishing and music, it is the artist to which the producing agent has exclusivity.

Model contracts
A model contract for theatre workers was drafted by the Theatre Managements of South Africa (TMSA) and the Performing Arts Workers Equity (PAWE).  The South African Scriptwriters Association (SASWA) has devised a standard contract that its members can use as a basis for negotiation. Various employers e.g. festivals, broadcasters, publishers, promoters, etc use their own contracts devised by their legal departments or agents to suit the particular circumstances of the employer.

Mandatory clauses
There are no mandatory clauses as required in any law for independent contractors.  However, various clauses in contracts can be challenged in terms of existing laws where appropriate.

Duration of contracts
The length of contracts is determined by two main factors
i) for intermittent workers, by the length of the project and
ii) for salaried employees, by the availability of funding from year to year.

There is no agency or authority to monitor contracts and their consistency with labour law, or the country’s Constitution or other laws pertaining to the industry.

Short-term, casual contracts and fixed-term contracts are the primary forms of contracts used as this is the primary nature of the work provided.

Some contracts – particularly in the performing arts – have an “early termination” clause that allows the producer to end the contract prior to the scheduled end of the season, if it becomes clear that the production is not doing good business.  In such cases, producers may terminate the contract with sufficient (at least 7 days) warning, without having to compensate the performers.

Theoretically, a contract that is terminated by either party unfairly or on reasonable grounds is subject to legal action by the aggrieved party in terms of contractual law.  However, in practice, this seldom happens given the relatively small industry, and given the nature of the relationships between parties within the arts industry. What tends to happen is that an artist that terminates a contract early is blacklisted by the management, and is barred from working at the theatre. Should a producer terminate a contract early, artists are reluctant to challenge this as they do not have the financial means to take legal action; unions are relatively weak and do not enjoy the support of artists, and artists fear that challenging the producer may lead to their being blacklisted for future productions.

The growing trend – since 1994 at least - is towards casualisation, freelance work and independent contracting.  Salaried employment is increasingly the exception.

Duration of work
This varies from discipline to discipline, but generally, it is project -or production-specific.

There are no regulations governing the duration of work applicable to artists. 
Currently, employer organizations are not compelled to join an industry bargaining council to facilitate collective agreements.

There are few, if any, collective agreements within the arts.  Collective agreements were negotiated earlier between the Performing Arts Workers Equity (PAWE) and the public broadcaster, SABC as well as the Theatre Managements of South Africa (in 2000), but with the demise of the union, it is not clear whether these agreements have any standing currently, or whether they are enforceable. Where they are adhered to, it would be because of historical usage rather than current enforceability.

Health care and safety regulations
General health care and safety regulations
The Occupational Health and Safety Act, n°85 of 1993 and the Compensation for Occupational Injuries and Diseases Act, n°130 of 1993 cover artists in the same way as they would apply to other workers. 

The Occupational Health and Safety Act of 1993 is primarily concerned with the physical environment and structure where an employee fulfils her/his duties.  The employer is required to ensure that this environment is hygienic and safe.

Independent contractors are covered by Section 9 of this Act that states “every employer shall conduct his undertakings in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health of safety.”

The Compensation for Occupational Injuries and Diseases Act, 1993 provides for the compensation of employees who are injured in accidents that arise out of, or during the course of employment or who contract diseases related to their occupation.  All employers are required to register with the Compensation Fund created in terms of this Act, and administered by the Compensation Commissioner. 

This Act covers salaried employees, but excludes independent contractors from its provisions.

There are no health regulations specific to artists.

Since a near-fatal accident in which a leading actress fell five stories at one of the country’s largest theatres before 1994, there has been a greater awareness of the need for safety.  Notices warning the public and workers of possible dangers have been more in evidence since then.

The preventive measures adopted by employers are mainly educational and take the form of warning signs.  Preventive measures are not negotiated with trade unions as these are generally non-existent currently.

Artists with disabilities
While there are various initiatives to highlight disability within and through the arts, there is no particular regime protecting or advancing the rights or artists with disabilities.

Administrative inspections
The physical conditions of employment of artists are subject to the same inspection as other workers, and there is no special inspection regime for the working conditions of artists.
The Basic Conditions of Employment Act, 1997 provides for the appointment of labour inspectors to “promote, monitor and enforce compliance with an employment law”.  This entitles a labour inspector to investigate any complaint relating to any labour-related law (including hygiene, safety, social welfare, etc), and to issue compliance order where the employer undertakes to institute corrective action if necessary.

The Act states that the Minister (of Labour) may appoint any person in the public service as a labour inspector, or designate any person in the public service, or any person appointed as a designated agent of a bargaining council to act as a labour inspector.

On completion of an investigation, the labour inspector may issue a compliance order to, or obtain a written undertaking from the employer who has breached a labour law, to take corrective action.

Laws or regulations governing these matters: The Basic Conditions of Employment Act, 1997, the Occupational Health and Safety Act, 1993 and the Compensation for Occupational Injuries and Diseases Act, 1993 are the principal laws governing these matters.

SOCIAL WELFARE

a) Salaried artists (those with an employment contract)
The Unemployment Insurance Act establishes a Fund that provides for salaried staff during times of sickness and maternity, up to a maximum of six months.  Employers and employees are to contribute equal amounts to this fund on a weekly or monthly basis.  There is no national medical insurance scheme or national pension scheme.  These benefits are employer-specific and are generally pursued through private medical aid schemes and provident fund schemes.

To enjoy effective social welfare provision, salaried artists need to be salaried employees, and their employers need to participate in adequate private medical and pension schemes.

Most private provident or medical aid schemes provide options for the kind of cover employees want or can afford.  The benefits are directly related to the regular contributions.

Provision for welfare or benefits during periods of unemployment or inactivity
Some private pension and medical aid schemes provide for benefits for contributors for a limited period of unemployment.  Employees who have contributed to the Unemployment Fund would be entitled to an unemployment grant for up to six months.

The status of intermittent worker
Intermittent workers are regarded as casual workers or as independent contractors.

Legal obligations of the employer (employment statements, wage slips…)
An employer is obliged to give an employee the following information in writing on each day the employee is paid: the employer’s name and address, the employee’s name and occupation, the period for which payment is made, the employee’s remuneration in money, the amount and purpose of any deduction made from the remuneration, the actual amount paid to the employee and any information relating to overtime.

Social welfare cover and fixed-term  contracts
This depends on the nature and terms of the contract, and the length of the contract.  For some salaried employees with fixed-term contracts, it may be that they enjoy the same benefits on a pro rata basis as salaried employees with open-ended contracts.  For others, they may have fewer benefits e.g. the employer won’t contribute to a pension scheme, but will make a contribution to a medical aid scheme.  Or, the fixed term employee may have a contract resembling that of an independent contractor where no benefits are paid, but remuneration levels are higher than for salaried employees as fixed-term contractors will be required to make their own arrangements with regard to pension, medical aid and other insurances.

Salaried employees residing abroad
The responsibilities of the company to the employee would be the same as if the employee were working in the national territory.
 
Additional and/or voluntary insurance
Employees and independent contractors have a range of additional, voluntary private sector insurances to choose from for health, retirement, life cover and professional incapacity reasons.

Supplementary insurance
Except for unemployment insurance for salaried employees, social welfare cover is not obligatory, and certainly not for artists, most of whom are independent contractors.  Recent research found that less than 25% of actors had some form of pension scheme and less than 50% had access to medical insurance.  Generally, artists are obliged to make their own arrangements in this regard.

Social welfare cover for artists with disabilities
More than 6,5 million South Africans currently receive some form of welfare grant from the State including old age grants, disability grants, war veterans grants, foster child grants, child support grants, social relief, etc.  There is no special social welfare cover for artists with disabilities, but artists with disabilities may apply for social welfare cover as any citizen.

The Basic Conditions of Employment Act, 1997 and the Social Assistance Act, n°13 of 2004 govern these areas.

Percentage (in relation to salary) of social security contributions paid by the employer
Employers pay up to 5% of the employee’s salary to pension or provident fund schemes and 1% to unemployment insurance.

Percentage (in relation to salary) of social security contributions paid by the employee
The employee pays a matching amount to that of the employer.

The contributions the employer/employee must pay are set as a percentage of the weekly, fortnightly or monthly salary.

Scale of the social welfare cover
Most social welfare for artists will be covered by private schemes, and this varies according to the choice – and affordability – on the part of the artist.

Administrative aspects
Body responsible for collecting contributions (State, a body under State control, trade union, private enterprise, etc.)
Generally, the private sector collects pension and medical aid contributions while the State – through the SA Revenue Service – collects unemployment insurance fund contributions.

The private sector or the State depending on the benefit is responsible for paying benefits to artists.

Health costs and other welfare benefits when a salaried employee is no longer protected by an insurance scheme
The State provides public hospitals for people who are unable to pay for private medical care and employees described above may apply for a social grant should they be eligible for such assistance.

b) Non-salaried workers (those without an employment contract)

Additional insurance
They are responsible entirely for whatever insurances they wish to have.

Legal status of salaried employees resident abroad
They do not have any legal status as artists, merely the same status as citizens of their country.

Obligations of service users having their corporate headquarters abroad
They do not have any obligations to non-salaried artists other than what is agreed in a contract between them and the artists.

Social cover provided for non-salaried artists
The scale is relative to the private insurance options selected and paid for by the artist.

Administrative aspects
Body responsible for collecting contributions
The artist pays it directly to the private sector company providing the cover.

The private sector company is responsible for paying benefits to artists.

Health costs and other welfare benefits when a salaried employee is no longer protected by an insurance scheme
The State provides public hospitals for people who are unable to pay for private medical care and employees described above may apply for a social grant should they be eligible for such assistance.

UNEMPLOYMENT

Statistics on the average duration of total unemployment
Information not available.

Statistics on the average duration of unemployment per month for intermittent workers
Recent research conducted into the theatre industry indicated that actors work for an average of just less than 6 months per year.

Unemployment insurance system
There is no unemployment insurance system particular to artists. The Unemployment Insurance Act, n°63 of 2001 applies to all workers except government employees, but specifically excludes “independent contractors”, a category into which most artists would fall.
 
The Unemployment Insurance Act requires both the employer and the contributor each to contribute 1% of the earnings of the contributor to the Unemployment Fund.   Some employers in the arts do deduct UIF contributions from the earnings of artists – even for intermittent workers - while others do not.  For salaried employees, the Act is more clearly applicable.

Financial aspects
Scale and duration of the unemployment benefits
45% of the last weekly or monthly remuneration received will be paid during a period of unemployment for up to 26 weeks.

Conditions of entitlement to unemployment benefits
The person seeking unemployment benefits must not be in receipt of a state pension or any benefit from a State Compensation Fund.  S/he must also be registered as a work-seeker at a labour centre, and must be capable and available for work.

There is no social welfare cover specific for artists during the period of unemployment.

The Unemployment Insurance Act, n°63 of 2001, governs this matter.

Body responsible for collecting contributions
The South African Revenue Service (SARS) is responsible for collecting contributions.

The Unemployment Insurance Fund (to which SARS channels the contributions) is responsible for paying unemployment benefits.

The State does not  undertake to pay a minimum income when an artist is not covered by any insurance scheme.

The administrative aspects of unemployment benefits are regulated by the Unemployment Insurance Act, n°63 of 2001.

REMUNERATION

Salaries are paid directly to artists.  Remuneration is generally in the form of cash.

The Labour Relations Act n°66 of 1995, and the Basic Conditions of Employment Act, n°75 of 1997 govern the remuneration of workers.

Minimum level of remuneration (by service, by week, by month)
There are no legislated – or generally agreed (between unions and employer organizations) – minimum wages for artists.

Historically, artists have often rendered their services for free of charge, particularly those engaged in the struggle against apartheid.  While this is still happening, it is less frequent, although the value of artists’ work is still deemed to be relatively low in remuneration terms.

Societies for collective rights management
There are several collecting societies including the South African Music Rights Organisation (SAMRO), Dramatic, Artistic and Literary Rights Organisation (DALRO), SA Recording Rights Association Ltd (SARRAL) and the National Organisation for Reproduction Rights in Music in Southern Africa (NORM).

Generally, artists do benefit from these collecting societies.

Problems in receiving rights collected in the name of artists by the collective management societies: there have often been problems between artists and some of the collective rights societies, with musicians sometimes marching in protest against the poor services rendered by some of these societies.

The Copyright Act n°98 of 1978 and the Performers Protection Act of 1967 govern these matters.

Source: UNESCO, December 2005.