Helping our actors to enjoy better rights will be complicated at best

For a split second, there was all sorts of excitement surrounding employment protections for actors that many people in the industry have been fighting for for years.

The South African Guild of Actors is generally very vocal about it. Vatiswa Ndara hit hard with an open letter back in October and, a few weeks ago, Florence Masebe claimed that actors are treated worse now than a decade ago.

It’s easy to understand, therefore, why the excitement around new rules in the entertainment industry is so pervasive. This excitement raises two questions, though: is abuse of industry workers really as bad as the testimony claims it to be, and will the new rules help in any way?

Let’s start with the easier one. Are those in acting merely divas with illusions of grandeur or are there excessive numbers of legitimate complaints about the industry? Unfortunately, we don’t have much to go on save for the testimony, which has been pretty damning.

There is also a matter of statistics.

The latest CCMA report gives an indication of the number of jobs saved in each sector. With the exception of a few sectors (generally those with small study sizes), the percentage of jobs saved hovers between 15% and 40%. If you take a look at jobs saved in the entertainment sector, you’re looking at 76% of at-risk jobs saved. Sure, this is open to interpretation but, to me, especially when CCMA matters statistically tend to swing in favour of the employer, this is a rather telling statistic.

In other words, I’m inclined to believe the plight of those in the acting sector.

The bigger question, though, is whether these rules will help, especially because we don’t know what they will be yet. Commentary is still open until the middle of January.

The acting industry is a strange one and one that, by necessity, tends to have options to skirt a lot of legal blocks albeit through significant red tape. Consider, for a moment, child actors. It is a legitimate job, but permission must be sought through certain requirements lest it be considered child labour. You can’t do that in any other industry. Consider also shooting time, which can be as long as 14 hours straight and possibly even at ungodly hours.

By way of example, when I lived in Ponte Tower, a Drake music video was shot at 3am but the team was rigging from the previous evening and the dancers and actors had to spend all night/morning at the building for shooting.

It is impossible to simply place actors into the provisions of the Basic Conditions of Employment Act as many suggest. This is for two primary reasons. The less appealing one would be that the disruption to the industry would cost it too much to make most shoots fiscally feasible and the rules would cannibalise the industry. I don’t think this is a great argument to make as, in isolation, it is tantamount to saying money is more important than people, which is a pretty unpopular line to take, especially in that industry. But also, with long term planning, one can overcome that.

What I believe the bigger issue facing the minister will be is how you bring independent contractors into labour legislation. From actors to presenter to radio jocks, you’ll be hard-pressed to find any person in broadcasting who is in front of a camera/microphone who is actually employed as an employee.

For functionality of the industry, “talent” is brought on as an independent contractor, meaning you’re paid for the work you do, not the time you spend. This could have the result of being paid per episode, where an episode takes days to shoot. Naturally, the rigging and set design, etc, cost more the longer you are on set, so the production has incentive to complete shoots efficiently – but the point is that, if you don’t work, you won’t get paid.

That seems reasonable until you factor in the little that entry level actors get paid contrasted with the difficulty they may have even getting cast and the high risk and general low life-cycle in the industry. Then you may start to consider giving them some paid leave annually. Only problem is, paid leave from who? Very few gigs go on for a year, which means that actors have multiple gigs throughout the year, often with gaps in between. Where should the leave come from and who should pay them for it?

What about dismissals that are a result of the storyline when a character is killed off? How does equal pay for equal work factor in when bigger names bring in more revenue? If they work for three months on contract, are they considered permanent employees?

The South African Guild of Actors has correctly seen that workers in this industry cannot be considered “typical” workers, but even classifying them as “atypical” will not solve the issues.

Government, industry and the association have a difficult conversation ahead where they are likely to conclude that the law’s ability to come to the aide of actors is severely limited by the nature of our law and the industry itself.

Richard Anthony Chemaly.

Richard Chemaly is an entertainment attorney, radio broadcaster and lecturer of communication ethics

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