Know Your Legal Position
Knowing where you stand legally as a freelancer is often difficult, especially when you are starting out in the industry. Below is an outline to some of the most frequently asked questions, which has been created for this site by media legal firm Denton Wilde and Sapte.
It is important to remember though that this document is provided on our website for general information - it does not in any way constitute legal advice and therefore should not be relied upon for this purpose. If you have specific questions on which you require assistance you should seek appropriate legal advice from either the Union or a media law firm.
It is also important to state that the information here has been written in good faith but with no guarantees that it is as specific or as up to date as it may need to be for individual concerns.
CONTENTS
SECTION A: NEGOTIATING YOUR CONTRACT
1. What is a Contract or Agreement?
1.1 Intention to be legally bound
1.2 Offer and acceptance
1.3 Consideration
2. Points to note when negotiating a contract
1. Union Contracts
2. Non Union Contracts
2.1 Duration
2.2 Exclusivity
2.3 Services
2.4 Payment and deferred payments
2.5 Warranty and indemnity
2.6 Assignment of copyright
2.7 Termination and suspension
SECTION B: ARE YOU AN EMPLOYEE OR A FREELANCE WORKER?
1. When are you an employee and when are you a freelance worker?
2. What special rights do employees enjoy?
3. What is a worker?
4. What specific rights do workers enjoy?
4.1 Working hours
4.2 Holiday pay
4.3 Rest breaks and night time working
4.4 National minimum wage
4.5 Protection from discrimination
4.6 The benefit of health and safety legislation
SECTION A - NEGOTIATING YOUR CONTRACT
1. WHAT IS A CONTRACT OR AGREEMENT?
When you are looking for work with a production company, one of the first points you need to understand is when you have a legally binding 'agreement' or 'contract' with that company. The words 'contract' or 'agreement' mean exactly the same thing and can be used interchangeably. For the purpose of this information installment the word 'contract' is used.
A contract is a promise or a set of promises between two or more people that the law will enforce. There are three elements to which contracts the law will enforce: Firstly, there must be an intention to be legally bound; secondly, there must be an offer and acceptance; and thirdly there must be consideration.
1.1 Intention to be legally bound
As a general rule, a contract does not have to be writing, it can be legally binding even if it is oral, provided that it is clear that both parties intended to be legally bound to each other. It may, however be extremely difficult to prove the existence of an oral contract and it is always advisable to ensure that the contract is in writing and signed by both parties. When signing a letter agreement that you want to be legally binding you should ensure the following words are inserted at the bottom of the letter:
Once signed by both parties, this letter shall constitute a legally binding agreement between them.
The following type of language will mean the letter agreement will not be legally binding:
This letter sets out the main terms of a long form agreement which the parties intend to enter into. Until such long form agreement is entered into, the parties do not intend this letter to constitute a legally-binding agreement between them.
1.2 Offer and Acceptance
A contract means that there must be an offer from A and an unconditional acceptance of that offer from B. An offer is when A states that she/he is willing to enter into a binding contract with B, if and when B accepts the offer. Acceptance is the final and unqualified agreement by B to the terms of the offer from A.
1.3 Consideration
For a contract to be enforceable, there must be consideration. Consideration essentially means an agreement from each party to do something. For example, in the context of a contract of employment or a contract for services this will usually mean that you agree to provide services in return for payment.
2. POINTS TO NOTE WHEN NEGOTIATING YOUR CONTRACT
Union contracts
Many independent producers will be members of PACT (Producers Alliance for Cinema and Television). PACT has collective agreements with the following unions:
a) BECTU - the Broadcasting, Entertainment, Cinematography & Theatre Union
b) Equity
c) The Musicians' Union
d) The Writers Guild of Great Britain.
If you are member of one of the above unions, it may be advisable for your contract with the producer to be negotiated incorporating terms of the collective agreement negotiated between PACT and your union.
This is particularly advantageous if you are not intending to take legal advice on your contract, as you will know that your union will have reviewed and negotiated the terms on your behalf.
If you are member of a union and expect to be contracting on standard union terms, you will receive a letter agreement in the standard form with the words: this engagement is subject to the terms and conditions of the PACT/BECTU Freelance Production Agreement.
For copies of the standard letter agreement, collective agreement and agreed rate card, contact your union. There are links to the organisations listed above on the Skillset website.
Non-union contracts
If you are contracting on non-union terms, you will need to read the contract carefully or take legal advice. You should think about the following points when you review the contract that the producer will provide you with:
2.1 Duration
Is your contract for a fixed term? i.e. I engage you from the date of this agreement until {certain date}.
If it is for a fixed term, are you happy to be tied to the contract for the length of that term? If you are being engaged on a specific production then you will probably have a fixed term contract.
Or is it a contract terminable on notice? i.e. I engage you to provide your services on {title of production}. I will be entitled to terminate this engagement in my entire discretion on one week's notice to you.
If it is terminable on notice, how much notice must the producer give you? It may be advantageous to you to negotiate a long period of notice to give you some time to find another engagement.
2.2. Exclusivity
Will your services be exclusive, i.e. you can't work for anyone else during the period of engagement, or non-exclusive, i.e. you can work for others?
If your services are to be exclusive, you should ensure that your weekly fee accurately reflects the fact that you will be unable to undertake services for a third party.
If your services are non exclusive then you should ensure that it is clearly stated when you will be required to work during your period of engagement.
2.3 Services
What services will you be providing to the production company? Do you want the producer to provide you with any services, such as specific training? In either case they should be set out in the contract.
2.4 Payment
What will you be paid and how frequently will you be paid?
Will you be paid any travel or other expenses required to work on location?
Is the producer suggesting that all or part of your fee should be 'deferred'?
A deferred payment means that some or your entire fee will be paid at a later date, usually out of first receipts from a film.
If you are offered a deferred payment you should consider the following points:
When is the fee being deferred until? i.e. will you receive the payment on a specific date or will you be paid out of receipts.
If you are being paid out of 'First Receipts', 'Net Profits' or 'Net Revenues' you will need to check very carefully how these terms are defined.
What costs or fees will be recouped by the producer or distributor before profits are reached, i.e. will the whole of the production cost be recouped? Will the distributor be entitled to deduct a fee before profits are reached?
It should be noted that profits definitions can be extremely detailed documents and it is beyond the scope of this Information Instalment to discuss the details of these definitions.
When considering whether to agree to a deferred payment you should try to weigh up how likely the film is ever to be in profit, or receive a certain level of receipts.
If the film has a distributor attached then it is more likely that revenue will be generated.
You should note, however, that the majority of films do not go into profit and you may never be paid. Try to ensure that only part of your fee is deferred and also ensure that the contract is benefiting you in some other way, such as training. If you do agree to a deferred fee this should be higher than an up-front payment because you are taking the risk that you will never be paid the fee.
2.5 Warranties
You may see representations and warranties in the contract. Representations and warranties are statements of fact made by you and you need to ensure you know that each representation and warranty is accurate.
It is usual to include representations and warranties if you are assigning copyright in a creative work that you own to a producer, for example if you have written a script these representation and warranties will usually be statements that you own the copyright work and that you have not transferred it to a third party etc.
2.6 Assignment of Copyright
Copyright subsists in nearly all the individual creative elements that together make up a production, such as the script, the music, the design elements etc. The completed production also has its own separate copyright.
Copyright law is a complex area and a detailed discussion is beyond the scope of this Information Instalment.
Copyright is the ownership of intellectual property. The intellectual properties in which copyright subsists are defined in part one, chapter one of the Copyright Designs and Patents Act 1988 as follows:
original literary, dramatic, musical or artistic work;
sound recordings, films, broadcasts or cable programmes; and
the typographical arrangements of published edition.
In the cases of all such works the creator is generally the first owner of copyright, except where the work is carried out by an employee in the course of his or her employment in which case the employer is the copyright owner.
As copyright is a property right, it can be transferred to a third party. All contracts can therefore contain an assignment of copyright whereby the creator assigns all his rights in the products of his services, including all copyright, to the producer, along the following lines: with full title guarantee you hereby assign to us all rights in the production of your services including without limitation all copyright...
If you are a technical worker, it is unlikely that you will have any copyright in the products of your services unless there is a creative element to what you produce. For example, if you are a writer then copyright will exist in your screenplay, if you are a production designer, copyright will exist in your designs and the models built as a result of your designs etc.
2.7 Termination and Suspension
The producer may insert a provision whereby he has the right to suspend your services if you are ill or fail to comply with any of your obligations under the agreement.
If the producer does have the right to suspend, check how long for and perhaps suggest a provision is inserted which allows you to terminate the contract which has been suspended for a certain period of time.
There will also be termination provisions.
If this is a contract terminable on notice, then the termination provision will not be so significant for you. If, however, this is a fixed term contract, for example for the duration of a production, then you should check that there are no provisions in the termination section which allow the producer to terminate the contract on notice to you, without any failure to comply with the contract on your part.
SECTION B - ARE YOU AN EMPLOYEE OR A FREELANCE WORKER?
1. WHEN ARE YOU AN EMPLOYEE AND WHEN ARE YOU A FREELANCE WORKER?
One important point to consider is whether you are being engaged as an employee or as a freelance worker. There is no single legal definition of an 'employee' but the following principles should be considered:
Mutuality of obligation such that the company is obliged to provide work and the employee is obliged to accept it.
An obligation to perform the work personally. The employee cannot hire someone else if she/he does not want to do it himself.
Are there mutual duties of trust and confidence between the employee and the company?
Who provides the equipment used by the employee? For example: computer and telecommunications equipment.
Does the employee receive sick pay and contractual holiday pay?
2. WHAT SPECIAL RIGHTS DO EMPLOYEES ENJOY?
Employers have more obligations to their employees than towards freelance workers. Workers who are not 'employees' do not enjoy the same statutory protection rights.
For example, the employer must deduct tax through the PAYE system and pay national insurance contributions for employees and generally it is more costly to employ people than to engage the services of self-employed people. An individual who is genuinely self-employed is responsible for paying tax under Schedule D.
Unlike the genuinely self-employed, employees benefit from a range of legal rights and protection. For example, the right to maternity leave and pay, sick pay, statutory minimum notice, equal pay, a statutory redundancy payment and the right not to be unfairly dismissed.
Just as the obligation of an employer is more onerous towards its employees, so the obligations of employees towards their employers are in some respects greater. For example, an employer can exercise much greater control over an employee than someone who is self-employed with regard to when, where and how the work is carried out and an employee is also prevented from carrying out work for other employers at the same time whereas self-employed people will often not agree to devote the whole of their time and attention to one job.
3. WHAT IS A WORKER?
The Working Time Regulations 1998 (the 'Regulations') and other legislation deriving from the EU uses the term 'worker'. A worker is not an individual working under a contract of employment, but an individual working under 'any other contract whereby the individual undertakes to do or perform personally any work services for a party whose status is... not that of a client or customer of any professional business undertaking carried out by the individual'.
Many agency workers and freelancers are likely to be 'workers'.
Therefore the fact that you pay Schedule D tax, does not exclude you from being a 'worker'. For example, if you are Set Designer and are employed to work on a production where all equipment is provided and the set construction staff are separately engaged by the producer, you will probably be seen to be a worker.
If, however, you are engaged to design and construct the set for a negotiated all-inclusive fee and you buy the materials and engage the construction staff yourself, and provide your own equipment, then you are unlikely to be a worker, but are more likely to be seen to be in business on your own account.
4. WHAT SPECIFIC RIGHTS DO WORKERS ENJOY?
4.1 Working Hours
The benefits set out in the working hours Regulations will be accorded to a worker. Amongst other matters the Regulations require an employer to take all reasonable steps to ensure that each worker works no more than 48 hours on average in each working week over a reference period of 17 weeks.
This reference period of 17 weeks may be extended to 26 weeks in certain circumstance, one of them being where the worker's activities involve the need for continuity of service or production, i.e. round the clock activities such as in the television or film industry.
The worker can agree in writing to 'opt out' of the 48 hour working week limit, although the worker retains the right to opt back in, by giving notice to his employer of his intention to do so.
All production companies when engaging staff will include an opt out clause along the following lines:
The worker agrees that she/he will work such hours as are necessary to fulfil her/his obligation under this agreement, and accepts that this may involved working an average of more than 48 hours per week. The worker agrees that the maximum weekly working time specified in Regulation 4 of the Working Time Regulations 1998 (the 'Regulations') shall not apply to this contract. This clause shall constitute an agreement in writing for the purposes of Regulation 5 of the Regulations. If the worker wishes to terminate the agreement contained in this clause, he must give the employer three months notice in writing.
This is a standard provision that will be contained in most contracts. The PACT/BECTU Agreement has specific provisions relating to working hours. If you are a member of BECTU contact them for further information.
4.2 Holiday Pay
All 'workers' have the right to four weeks paid holiday per annum.
For contracts of less than a year the entitlement will be 1.6 days per month.
This requirement cannot be opted out of by the employer, but in film production you will usually see a clause that provides that you will take your holiday entitlement at the end of the contract.
4.3 Rest Breaks and Night-time Working
The Regulations give employers flexibility when it comes to projects where short bursts of concentrated work is the norm. The Regulations state that the provisions relating to rest periods, rest break provisions and night work do not apply where:
Workers' activities involve the need for continuous service or production as the case may be in relation to press, radio, television and cinematic production.
The provisions relating to rest breaks may not, therefore, apply when you are engaged to work on a specific production. The PACT/BECTU Agreement does, however, provide for specific rest provisions.
4.4 The right to receive the national minimum wage under the National Minimum Wage Regulations 1998
In October 2000, the National Minimum Wage was set at the rate of £3.70 per hour. This increased to £4.10 in October 2001, to £4.20 in October 2002 and is currently set at £4.85 an hour.
4.5 Protection from discrimination under legislation
Including, whistle-blowing legislation and the race, sex and disability discrimination acts, as well as less favourable treatment by reason of being a part-timer; and
4.6 The benefit of health & safety legislation.
This document provides general information on just some of the more frequently asked questions by freelancers. But if you have specific questions on which you require assistance you should seek appropriate legal advice from either the Union or a media law firm.
It is important to remember though that this document is provided on our website for general information - it does not in any way constitute legal advice and therefore should not be relied upon for this purpose. If you have specific questions on which you require assistance you should seek appropriate legal advice from either the Union or a media law firm.
It is also important to state that the information here has been written in good faith but with no guarantees that it is as specific or as up to date as it may need to be for individual concerns.
CONTENTS
SECTION A: NEGOTIATING YOUR CONTRACT
1. What is a Contract or Agreement?
1.1 Intention to be legally bound
1.2 Offer and acceptance
1.3 Consideration
2. Points to note when negotiating a contract
1. Union Contracts
2. Non Union Contracts
2.1 Duration
2.2 Exclusivity
2.3 Services
2.4 Payment and deferred payments
2.5 Warranty and indemnity
2.6 Assignment of copyright
2.7 Termination and suspension
SECTION B: ARE YOU AN EMPLOYEE OR A FREELANCE WORKER?
1. When are you an employee and when are you a freelance worker?
2. What special rights do employees enjoy?
3. What is a worker?
4. What specific rights do workers enjoy?
4.1 Working hours
4.2 Holiday pay
4.3 Rest breaks and night time working
4.4 National minimum wage
4.5 Protection from discrimination
4.6 The benefit of health and safety legislation
SECTION A - NEGOTIATING YOUR CONTRACT
1. WHAT IS A CONTRACT OR AGREEMENT?
When you are looking for work with a production company, one of the first points you need to understand is when you have a legally binding 'agreement' or 'contract' with that company. The words 'contract' or 'agreement' mean exactly the same thing and can be used interchangeably. For the purpose of this information installment the word 'contract' is used.
A contract is a promise or a set of promises between two or more people that the law will enforce. There are three elements to which contracts the law will enforce: Firstly, there must be an intention to be legally bound; secondly, there must be an offer and acceptance; and thirdly there must be consideration.
1.1 Intention to be legally bound
As a general rule, a contract does not have to be writing, it can be legally binding even if it is oral, provided that it is clear that both parties intended to be legally bound to each other. It may, however be extremely difficult to prove the existence of an oral contract and it is always advisable to ensure that the contract is in writing and signed by both parties. When signing a letter agreement that you want to be legally binding you should ensure the following words are inserted at the bottom of the letter:
Once signed by both parties, this letter shall constitute a legally binding agreement between them.
The following type of language will mean the letter agreement will not be legally binding:
This letter sets out the main terms of a long form agreement which the parties intend to enter into. Until such long form agreement is entered into, the parties do not intend this letter to constitute a legally-binding agreement between them.
1.2 Offer and Acceptance
A contract means that there must be an offer from A and an unconditional acceptance of that offer from B. An offer is when A states that she/he is willing to enter into a binding contract with B, if and when B accepts the offer. Acceptance is the final and unqualified agreement by B to the terms of the offer from A.
1.3 Consideration
For a contract to be enforceable, there must be consideration. Consideration essentially means an agreement from each party to do something. For example, in the context of a contract of employment or a contract for services this will usually mean that you agree to provide services in return for payment.
2. POINTS TO NOTE WHEN NEGOTIATING YOUR CONTRACT
Union contracts
Many independent producers will be members of PACT (Producers Alliance for Cinema and Television). PACT has collective agreements with the following unions:
a) BECTU - the Broadcasting, Entertainment, Cinematography & Theatre Union
b) Equity
c) The Musicians' Union
d) The Writers Guild of Great Britain.
If you are member of one of the above unions, it may be advisable for your contract with the producer to be negotiated incorporating terms of the collective agreement negotiated between PACT and your union.
This is particularly advantageous if you are not intending to take legal advice on your contract, as you will know that your union will have reviewed and negotiated the terms on your behalf.
If you are member of a union and expect to be contracting on standard union terms, you will receive a letter agreement in the standard form with the words: this engagement is subject to the terms and conditions of the PACT/BECTU Freelance Production Agreement.
For copies of the standard letter agreement, collective agreement and agreed rate card, contact your union. There are links to the organisations listed above on the Skillset website.
Non-union contracts
If you are contracting on non-union terms, you will need to read the contract carefully or take legal advice. You should think about the following points when you review the contract that the producer will provide you with:
2.1 Duration
Is your contract for a fixed term? i.e. I engage you from the date of this agreement until {certain date}.
If it is for a fixed term, are you happy to be tied to the contract for the length of that term? If you are being engaged on a specific production then you will probably have a fixed term contract.
Or is it a contract terminable on notice? i.e. I engage you to provide your services on {title of production}. I will be entitled to terminate this engagement in my entire discretion on one week's notice to you.
If it is terminable on notice, how much notice must the producer give you? It may be advantageous to you to negotiate a long period of notice to give you some time to find another engagement.
2.2. Exclusivity
Will your services be exclusive, i.e. you can't work for anyone else during the period of engagement, or non-exclusive, i.e. you can work for others?
If your services are to be exclusive, you should ensure that your weekly fee accurately reflects the fact that you will be unable to undertake services for a third party.
If your services are non exclusive then you should ensure that it is clearly stated when you will be required to work during your period of engagement.
2.3 Services
What services will you be providing to the production company? Do you want the producer to provide you with any services, such as specific training? In either case they should be set out in the contract.
2.4 Payment
What will you be paid and how frequently will you be paid?
Will you be paid any travel or other expenses required to work on location?
Is the producer suggesting that all or part of your fee should be 'deferred'?
A deferred payment means that some or your entire fee will be paid at a later date, usually out of first receipts from a film.
If you are offered a deferred payment you should consider the following points:
When is the fee being deferred until? i.e. will you receive the payment on a specific date or will you be paid out of receipts.
If you are being paid out of 'First Receipts', 'Net Profits' or 'Net Revenues' you will need to check very carefully how these terms are defined.
What costs or fees will be recouped by the producer or distributor before profits are reached, i.e. will the whole of the production cost be recouped? Will the distributor be entitled to deduct a fee before profits are reached?
It should be noted that profits definitions can be extremely detailed documents and it is beyond the scope of this Information Instalment to discuss the details of these definitions.
When considering whether to agree to a deferred payment you should try to weigh up how likely the film is ever to be in profit, or receive a certain level of receipts.
If the film has a distributor attached then it is more likely that revenue will be generated.
You should note, however, that the majority of films do not go into profit and you may never be paid. Try to ensure that only part of your fee is deferred and also ensure that the contract is benefiting you in some other way, such as training. If you do agree to a deferred fee this should be higher than an up-front payment because you are taking the risk that you will never be paid the fee.
2.5 Warranties
You may see representations and warranties in the contract. Representations and warranties are statements of fact made by you and you need to ensure you know that each representation and warranty is accurate.
It is usual to include representations and warranties if you are assigning copyright in a creative work that you own to a producer, for example if you have written a script these representation and warranties will usually be statements that you own the copyright work and that you have not transferred it to a third party etc.
2.6 Assignment of Copyright
Copyright subsists in nearly all the individual creative elements that together make up a production, such as the script, the music, the design elements etc. The completed production also has its own separate copyright.
Copyright law is a complex area and a detailed discussion is beyond the scope of this Information Instalment.
Copyright is the ownership of intellectual property. The intellectual properties in which copyright subsists are defined in part one, chapter one of the Copyright Designs and Patents Act 1988 as follows:
original literary, dramatic, musical or artistic work;
sound recordings, films, broadcasts or cable programmes; and
the typographical arrangements of published edition.
In the cases of all such works the creator is generally the first owner of copyright, except where the work is carried out by an employee in the course of his or her employment in which case the employer is the copyright owner.
As copyright is a property right, it can be transferred to a third party. All contracts can therefore contain an assignment of copyright whereby the creator assigns all his rights in the products of his services, including all copyright, to the producer, along the following lines: with full title guarantee you hereby assign to us all rights in the production of your services including without limitation all copyright...
If you are a technical worker, it is unlikely that you will have any copyright in the products of your services unless there is a creative element to what you produce. For example, if you are a writer then copyright will exist in your screenplay, if you are a production designer, copyright will exist in your designs and the models built as a result of your designs etc.
2.7 Termination and Suspension
The producer may insert a provision whereby he has the right to suspend your services if you are ill or fail to comply with any of your obligations under the agreement.
If the producer does have the right to suspend, check how long for and perhaps suggest a provision is inserted which allows you to terminate the contract which has been suspended for a certain period of time.
There will also be termination provisions.
If this is a contract terminable on notice, then the termination provision will not be so significant for you. If, however, this is a fixed term contract, for example for the duration of a production, then you should check that there are no provisions in the termination section which allow the producer to terminate the contract on notice to you, without any failure to comply with the contract on your part.
SECTION B - ARE YOU AN EMPLOYEE OR A FREELANCE WORKER?
1. WHEN ARE YOU AN EMPLOYEE AND WHEN ARE YOU A FREELANCE WORKER?
One important point to consider is whether you are being engaged as an employee or as a freelance worker. There is no single legal definition of an 'employee' but the following principles should be considered:
Mutuality of obligation such that the company is obliged to provide work and the employee is obliged to accept it.
An obligation to perform the work personally. The employee cannot hire someone else if she/he does not want to do it himself.
Are there mutual duties of trust and confidence between the employee and the company?
Who provides the equipment used by the employee? For example: computer and telecommunications equipment.
Does the employee receive sick pay and contractual holiday pay?
2. WHAT SPECIAL RIGHTS DO EMPLOYEES ENJOY?
Employers have more obligations to their employees than towards freelance workers. Workers who are not 'employees' do not enjoy the same statutory protection rights.
For example, the employer must deduct tax through the PAYE system and pay national insurance contributions for employees and generally it is more costly to employ people than to engage the services of self-employed people. An individual who is genuinely self-employed is responsible for paying tax under Schedule D.
Unlike the genuinely self-employed, employees benefit from a range of legal rights and protection. For example, the right to maternity leave and pay, sick pay, statutory minimum notice, equal pay, a statutory redundancy payment and the right not to be unfairly dismissed.
Just as the obligation of an employer is more onerous towards its employees, so the obligations of employees towards their employers are in some respects greater. For example, an employer can exercise much greater control over an employee than someone who is self-employed with regard to when, where and how the work is carried out and an employee is also prevented from carrying out work for other employers at the same time whereas self-employed people will often not agree to devote the whole of their time and attention to one job.
3. WHAT IS A WORKER?
The Working Time Regulations 1998 (the 'Regulations') and other legislation deriving from the EU uses the term 'worker'. A worker is not an individual working under a contract of employment, but an individual working under 'any other contract whereby the individual undertakes to do or perform personally any work services for a party whose status is... not that of a client or customer of any professional business undertaking carried out by the individual'.
Many agency workers and freelancers are likely to be 'workers'.
Therefore the fact that you pay Schedule D tax, does not exclude you from being a 'worker'. For example, if you are Set Designer and are employed to work on a production where all equipment is provided and the set construction staff are separately engaged by the producer, you will probably be seen to be a worker.
If, however, you are engaged to design and construct the set for a negotiated all-inclusive fee and you buy the materials and engage the construction staff yourself, and provide your own equipment, then you are unlikely to be a worker, but are more likely to be seen to be in business on your own account.
4. WHAT SPECIFIC RIGHTS DO WORKERS ENJOY?
4.1 Working Hours
The benefits set out in the working hours Regulations will be accorded to a worker. Amongst other matters the Regulations require an employer to take all reasonable steps to ensure that each worker works no more than 48 hours on average in each working week over a reference period of 17 weeks.
This reference period of 17 weeks may be extended to 26 weeks in certain circumstance, one of them being where the worker's activities involve the need for continuity of service or production, i.e. round the clock activities such as in the television or film industry.
The worker can agree in writing to 'opt out' of the 48 hour working week limit, although the worker retains the right to opt back in, by giving notice to his employer of his intention to do so.
All production companies when engaging staff will include an opt out clause along the following lines:
The worker agrees that she/he will work such hours as are necessary to fulfil her/his obligation under this agreement, and accepts that this may involved working an average of more than 48 hours per week. The worker agrees that the maximum weekly working time specified in Regulation 4 of the Working Time Regulations 1998 (the 'Regulations') shall not apply to this contract. This clause shall constitute an agreement in writing for the purposes of Regulation 5 of the Regulations. If the worker wishes to terminate the agreement contained in this clause, he must give the employer three months notice in writing.
This is a standard provision that will be contained in most contracts. The PACT/BECTU Agreement has specific provisions relating to working hours. If you are a member of BECTU contact them for further information.
4.2 Holiday Pay
All 'workers' have the right to four weeks paid holiday per annum.
For contracts of less than a year the entitlement will be 1.6 days per month.
This requirement cannot be opted out of by the employer, but in film production you will usually see a clause that provides that you will take your holiday entitlement at the end of the contract.
4.3 Rest Breaks and Night-time Working
The Regulations give employers flexibility when it comes to projects where short bursts of concentrated work is the norm. The Regulations state that the provisions relating to rest periods, rest break provisions and night work do not apply where:
Workers' activities involve the need for continuous service or production as the case may be in relation to press, radio, television and cinematic production.
The provisions relating to rest breaks may not, therefore, apply when you are engaged to work on a specific production. The PACT/BECTU Agreement does, however, provide for specific rest provisions.
4.4 The right to receive the national minimum wage under the National Minimum Wage Regulations 1998
In October 2000, the National Minimum Wage was set at the rate of £3.70 per hour. This increased to £4.10 in October 2001, to £4.20 in October 2002 and is currently set at £4.85 an hour.
4.5 Protection from discrimination under legislation
Including, whistle-blowing legislation and the race, sex and disability discrimination acts, as well as less favourable treatment by reason of being a part-timer; and
4.6 The benefit of health & safety legislation.
This document provides general information on just some of the more frequently asked questions by freelancers. But if you have specific questions on which you require assistance you should seek appropriate legal advice from either the Union or a media law firm.
