Landmark ruling in fringe pay dispute

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Five actors have won an employment tribunal that ruled they should be paid the national minimum wage for a fringe theatre show, despite the engagement having been advertised as profit share.

The action was supported by Equity, with the union claiming that the judgement has served notice on “bogus” profit share on the fringe. It marks the first time that such a case has been taken against a fringe theatre company and, while the ruling does not set a legal precedent, it is thought that it could impact on productions across the sector.

The performers – Mathangi Ray, Taghrid Choucair-Vizoso, Vesna Vujat, Peyman Shameli and Seda Yildiz – took the action against director Gavin McAlinden and his company Charm Offensive Limited, which had produced a revival of Pentecost by David Edgar at St Leonard’s Church in Shoreditch, London, in March 2012. The dispute arose after two of the claimants were dismissed from the production.

Employment Judge Ross concluded that the show was “not a collaborative artistic piece of work” and that the actors had been contracted to work for McAlinden. The actors had undertaken to “personally perform work or services” for the production company, there was an agreement on the times and days which they had to attend rehearsals and that there was a degree of control exercised over them.

Due to these factors, the judge ruled that despite the fact that the show had been clearly advertised as profit share (whereby the actors receive no wage but share in a proportion of the overall profits) and the actors were aware “that it was unlikely that there would be any profit to share”, they should have been paid NMW because they qualified as workers under the definitions of the National Minimum Wage Act and Regulation 2 of the Working Time Regulations 1998.

Speaking to The Stage following the ruling, Vujat said: “We were told what to do, where to work – it was just like a normal job. There was no collaboration as such because we didn’t have any input into the finances. We didn’t know what was going on, there was no open book [revealing the finances to the company].

“What made us take action was that he started firing people – in other words he [McAlinden] was the employer, he was the person with the power.”

Choucair-Vizoso added that the five actors were also unhappy when they found out that some of the crew were being paid.

McAlinden told The Stage he stood by his decision to dismiss two of the actors and felt that he had been clear with all the cast that the production was never likely to make much money.

He added: “It would have been impossible, as an unsubsidised company, to mount a production of Pentecost with a cast of 26 on the fringe as a fully paid production.

“I believe in fair pay for actors. In previous productions, I have raised money and paid actors. I am currently fundraising for a production where the actors will be paid. Pentecost was conceived as a non-commercial venture. A lot of actors had a very positive experience with the production, landed agents and got paid work as a result of their involvement.”

Several other cast members have contacted The Stage expressing support for McAlinden and emphasising they never expected to receive pay on the production.

However, the actors involved with the case said they would encourage others to take action in similar circumstances, while Paul Fleming, the Equity organiser who helped the performers take their case to tribunal, said it was “important that people take these cases when they come up and that we build up a set of case law”.

He added: “This is about the whole industry standing up and saying ‘this is an incredibly creative and production sector of theatre which we want to support and encourage and make reputable’.”

He gave the example of the King’s Head in Islington as a fringe theatre that had adapted its working practices so that it was in tune with employment law.

A decision on how much the actors will be paid has yet to be made.

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27 Comments

  1. Good! I’m so tired and disheartened by this industry where so many jobs are volunteer, unpaid and ‘profit share’. If you’re doing the work then you should get paid. It doesn’t matter that we do it for the ‘love of theatre’. We chose to work in this industry because we have a passion for it but we also need to buy food, transport, have a place to live and we can’t be doing this with so many unpaid jobs.

  2. I would like to be warned if actors are not being paid, as I would not go to see the production. Actors are union members, and not charity workers. Solidarity.

  3. “Several other cast members have contacted The Stage expressing support for McAlinden and emphasising they never expected to receive pay on the production.”

    Who are the MUGS here, now that some crew and 5 cast members got paid?

  4. The brave actors should be given free membership for a year for raising their
    heads above the parapet. Well done Flemyn
    too

  5. Under new government proposals, actors will no longer be ‘employees’ and therefore will have no right to the NMW, or even the right to put cases to an employment tribunal!

    See the letters section in this weeks (30 May) ‘The Stage’…

    ***:~))

  6. Such a shame, the beginning of the end of fringe theatre. Why is this society obsessed with money, why do actors like creatives weigh up if they can afford to do a production, pick and choose what they can afford to do. No one forces them to do it!

  7. Sometimes a profit sharesis the only option for actors and creatives starting out in the industry. I belive that an open book policy should be used in all productions of a profit share…but more often than not shows don’t make money. If all fringe shows are forced into NMW sadly there won’t be many fringe shows or venues or festivals left. Is it fair to do lo no pay? No …but as a director I have had to do many aswell….but most shows don’t make profit…and producers ans directors don’t often go about ripping actors off…yes it does happen but not that often. ..there must be a comprimse and understanding reached. ..this case is sad but it is not how all fringe is run….so …open book policy and please don’t kill the fringe cos for some its the only option to start their career.

  8. In response to Ts’S comment – yes it is a shame that every company cannot pay people for their work or even meet NMW. This is however due to the EXTREMELY HIGH costs of mouting a production on the fringe. We have to be very careful of generalising, as yes in many cases there are producers who CAN pay and who are making money off ‘Volunteers’ and that is discraceful! However the majority who are extremely honest about there books and finances and are striving to create opportunities in an over saturated and under funded business. Each case has to be treated individually, to just say ‘All Actors should be paid properly’ (Although I agree and wish this was a possibility. If that law came in. All the fringe venues would close down, and there would even less creative outlets to develope careers in a very difficult and competetive industry!

  9. As a young director who spent many years working for the aforementioned King’s Head Theatre in Angel and is now working freelance, there are many times when there is absolutely no money available in fringe to pay any creatives or performers. I have often given my time and creativity to projects even without travel expenses being offered as this is the harsh reality of fringe theatre. If you decide you won’t work for free, fair enough, but there will be a long que of extremely capable practitioners or performers ready to do just that in an instant. Working on shows that are entirely unpaid has provided me with huge very well paid opportunities in theatre, an excellent contact base and an ability to get funding and financial backing for my own projects. You have to take risks for your art and some of the finest actors I’ve worked with in terms of professionalism and ability have given me their time for free, they get first refusal in my current paid castings as a result. I will always pay my actors if I possibly can, but there certainly are cases where profit share is the only viable option to move ahead with a project. Actors know exactly what they’re getting themselves into, and all actors I’ve worked with see any money as a bonus when agreeing to be involved in a profit share production.

    An open book policy should certainly be the case, transparency is important when working in such a situation, but to berate theatre practitioners for not being able to pull money out of thin air to provide a fee which was never agreed with performers is theft, and is only going to lead to less risks being taken, fewer stories being told and a more inhibitive creative scene.

    I am taking a show to the Edinburgh Fringe for example and could certainly assemble a fantastic cast for it with no money offered at all, yet even with the show being entirely self-funded, costing just under £10,000 in it’s entirety (still very cheap by fringe standards) I am working extra hours in my day job to offer a specific wage for all cast members which will be equal in all cases. The directors I have worked with would never choose not to pay their actors if they could possibly afford it, but starting a career in theatre with nothing to your name, even giving tickets away can be difficult, let alone achieving break-even sales.

    I would like to think i will always take totally unpaid work if I really want to be involved in a project, and there is no fee available. Unless you are one of the lucky few who are in regular work in large-scale commercial theatre, it will not pay the bills year in year out. Get a part time job, take risks. All of the greats in this industry worth their salt started with nothing.

  10. No one is trying to kill fringe theatre and yes I agree with the comments that no one wants or wishes to do profit share and sometimes it is the only option. However, people do take the biscuit. I am a director and have directed profit share projects in the past, with this understanding I have treated my actors with respect and honoured their schedules.

    What seems to have happened here is that the actors were not treated with this respect. What needs to be wiped out is the assumption that actors don’t need to be paid which i have heard before as an opinion. Everyone should strive for payment and if you can’t do it then do profit share but treat your team with respect and understanding of that situation.

  11. The lesson to be learned here is, if you’re going to hack people off, don’t break the law while you’re doing it! I’ve no sympathy for McAlinden at all, he broke the law, he got caught – tough! It should serve as a warning to other producers who are considering how they’re going to put on their next big production when paying everyone, bar the actors.
    This won’t be the end of fringe, there will still be people who are willing to work for nothing and a lot of good, creative stuff will be produced. Working for nothing is “amateur” or “volunteer” in my book. I know that’s going to upset a lot of people, but paid = professional, unpaid = amateur/volunteer. Once we’re all realistic about this fact we can come to terms with why we do the job.

  12. No one is trying to kill the fringe, however it has a problem that it created. It ignored the National Minimum Wage and continues to do so.
    Don’t blame the unions or workers, who are only claiming what is rightfully theirs. Do we want the fringe to ignore Health and Safety and all other obligations NO! So why is it permissible simply to permit an illegal production just because one doesn’t have the money. Wait until you do or else scale down your aspirations.

    The fringe needs to get its house in order, the law wont be going away, neither will the legal cases. The only legal solution it has found seems to be to throw its hands in the air and cry “why me” – which is no solution whatsoever.
    It should be promoting more compliance and good practice, and while we’re at it raising standards.

  13. The result though is that this ruling HAS killed the London Fringe as we know it. I’m sure some producers/venues will be able to find a tame lawyer to help draw up a legally-sound collective agreement that allows all participants to continue to stage work, but as it stands EVERYONE must be paid NMW. (Yes – I know there are a few correctly written profit-share agreements!)
    (Yes – I KNOW that there are a few fantastically-run London Fringe/Off West End venues that are uber-transparent and don’t appear to have the same problems)

    So two questions:
    1) How many Equity members performed on the London Fringe last night for No Pay/Low Pay?
    2) How many productions on the Edinburgh Fringe are now going to be pulled?

  14. I think that people just don’t understand the law.
    If there is no collaborative element in a production or people are not working independently but are expected to be there at set times, set by the employer rather than negotiated, and just do what they are told with little creative input then they are a worker. The court ruling is correct. This ruling in no way affects truly collaborative projects or those projects which are happy to take into account the actors schedules.
    To count as self-employed person needs to be able to work independently and under their own steam, not for the whole time but at least for part of the production, usually the early devising or rehearsal period. Most fringe actors work in this way but there is a sizable minority of directors who think they can work like they are in a big west-end theatre and micromanage. However west-end directors can only can only work that way because they pay people as workers.
    Also, as said above, if people were less snobbish about using the amateur/community theatre label then they could avoid this sort of problem all together.
    Professional = paid

  15. Also, the government is not your friend in this matter. They have a policy of sue first and educate second. No one is telling people what the law is until it gets broken. It would be helpful if someone could post up a standard definition of what constitutes a worker, I’ve heard so many myths which apparently mean you can treat someone as self-employed or a volunteer when in fact nothing really matters except to what extent the person is being told what to do. It doesn’t help that the government keep changing the law or that they seem to want the law to be defined by the courts rather than through consultation with the industry.

  16. Why should these so called producers compete unfairly with legitimate companies who do pay NMW ?

  17. Actors know what they are getting into when doing Fringe, unless they are extremely naive they know there is very little chance of earning any money from the project. So it is a choice to be made by the actor whether they can afford to be involved in Fringe Theatre. My biggest grievance with the majority of Fringe Company’s within London (sorry for generalising) is that musicians and some creatives receive some sort of fee. It’s disgusting that actors are expected to work for nothing yet musicians, vocal coaches etc should be paid! Yes the idea of people gathering in a black room to make a creative artwork is fascinating and beautiful but the reality is this is show BUSINESS. As soon as you pay thousands of pounds to spend years training at Drama School it becomes a Job and a way to make a living, yes by doing something you love, but to pay the bills. You need to make money. I don’t know how this can be resolved. An American friend of mine finds it laughable and shocking that people ‘work’ for free within theatre. Off-Broadway manage to pay everyone involved, it’s time we caught up!!

  18. Of course this isn’t going to kill the fringe. It’s just going to make producers work a bit harder to raise funds for the shows they want to put on, instead of expecting something for nothing (i.e. actors to put in many hours’ hard work for no pay at all). It is an absolute disgrace to see crew members, lighting designers, musicians etc getting paid while the actors (who are of course crucial to any production) get nothing. And it is also a disgrace to see fringe theatres advertise their shows as “professional” when the cast aren’t getting paid.

    Just because there is always someone out there who would be willing to do the work for nothing, doesn’t make it right.

    @ Fight for the Fringe: “Why is this society obsessed with money”? Well, money tends to come in quite handy when paying for rent, food, bills, children’s clothes, that sort of thing. Those of us who make our living in theatre would generally tell you that getting a living wage for the work we do is kind of important for, y’know, survival…

  19. What fascinates me in this case is that it was brought about because of a grievance/disciplinary issue yet the sanction is for a financial issue. That’s the real nub of the matter. What was the catalyst for that? Why did Equity act in the case? Were ALL these cast members FULL members of Equity and able to use that organisation’s legal department? Why did Equity bring the NMW case for a matter that involved nothing other than a discipline matter with cast members that was affecting the whole production? Seems strange to me. It’s as if Equity had a pre-determined agenda – but that can’t possibly be the case. Equity are a magnificent and honourable organisation. I just don’t understand it.

  20. BTW
    I have no axe to grind with either Mr McAlinden or Equity – but naughty naughty T Harvey, keep the libel out of this fascinating and extremely important debate.

  21. @ JC
    As it stands under a ‘profit-share’ – the cast have NO rights. Thus the director had no right to sack them. So they took the only retribution they could and asked for NMW.
    You ask what was the catalyst – not treating actors fairly and properly (not to mention lawfully).
    Equity was not driving it, they are required bring legal cases if members ask them to.
    No conspiracy here.

  22. Hello everyone, Alistair Smith from The Stage here. Please can we keep this debate decent. I’ve already had to take down two comments for breaching our house rules. Any more, and I’ll have to think about shutting down the comments section on this post. You’re fine to vigorously debate the issue, but if you could refrain from making it personal, that would be much appreciated. Thanks

  23. @Derrick
    Why on earth does a “profit-share” PRODUCER and director NOT have the right to make production decisions? Are you saying that all profit-share productions are in effect co- operative/committee produced/directed? That’s unworkable.
    So far as “the only retribution they could” – that too doesn’t stack up. Are you saying that ALL five actors (who l see from their biogs appear relatively inexperienced) were FULL members of Equity before this job, then went to the union with a grievance about a sacking and it was THEY (not Equity) who thought of the idea of prosecuting for NMW? That doesn’t ring true either.

    Are you also suggesting that these five actors (unlike the other 20 odd in the cast) were ignorant of the fact BEFORE they auditioned that even if this fringe production in an 80 seat venue sold out, their profit-share was likely to be know more than the cost of a bus-pass? I think not.

    The more one looks at the actual FACTS in this case – the more it is evident that Equity have upgraded a dispute between the producer/director and a cast member and escalated it to a cause which was nothing to do with the original grievance.

    I would love to know of the details of the conversation between Mr McAlinden and Equity’s Mr Fleming. Was it just about the actors’ grievances? At what stage do you think did Equity’s Mr Fleming say to the Producer/director “oh by the way, I know this is a 26 strong low-pay/no pay fringe production in an 80 seat venue with no hope of you even covering your financial outlay in production costs, but I’ve advised these new/existing/full and longstanding members of ours to prosecute you for NOT agreeing upfront to pay them NMW!”

    It’s time to look at the truth here. Actors love a bit of “truth” they learn it at college. #dear

  24. As a producer I welcome this ruling – we produce 5 new shows a year and pay everyone involved, including rehearsals – which comes as a shock to some actors we employ! We have to cut our cloth to fit, so we would never dream of staging a 26 cast show. We receive no outside funding and only get by with bums on seats. It is very hard to keep costs low and standards high but you cannot exploit people who want to perform. I would never dream of asking my dentist to perform her job for free, would you? She loves her job but also needs to feed her family so would choose another profession to earn her crust.

    However, I do feel that Equity / ITC rates for fringe theatre are quite high and can see why other people cannot pay the rates they demand.

    #dear

  25. The voting question is wrongly posed, its weighted in favour of the Fringe, assuming they are doing an ethical and legal thing in the first place.

    What should have been asked responsibly is
    “Will the recent employment tribunal ruling mean that fringe producers now pay National Minimum Wage?”

    Isn’t that the way any responsible industry behaves?

  26. Day 50 At least it feels that way after 100 burpees (11:52) in my hotel room. First 20 were easy. Last 80 were btraul. Feel pretty good. No wdrawls yet. Water has been easy part for me. I found myself thinking of pizza for a brief moment today. But no chance of failing.

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