IDAA Application: Sectoral Determination for Film & TV Crew in South Africa
1. PREAMBLE:
This sectoral determination aims to establish a framework of rights and protections for crew members within the film and television industry, promoting fairness, equality, and dignity for all. It is incumbent upon producers, employers, and relevant stakeholders to uphold these principles and ensure a sustainable and ethical working environment for the benefit of all involved.
Whereas it is essential to address the unfair working conditions prevailing in the film and television industry, which often lead to the exploitation of crew members by self-serving and greedy producers.
There is an evident urgent need to establish working terms that not only prevent exploitation but also promote transformation, equality, and fairness for all individuals, irrespective of gender, race, or any other discriminatory factor, within the film and television industry.
2. PURPOSE:
(1) The purpose of this Sectorial Determination is to confront issues within Film & TV industry that has cast a shadow over its potential. Such issues include, but are not limited to:
(a) Lawlessness in our industry- the absent of stringent regulations has allowed a culture of lawlessness to thrive within our industry.
(b) Lack of Regulation- The absence of comprehensive regulation has left our industry susceptible to exploitation and misconduct.
(c) Profit Over People- Certain producers prioritize profit over the well-being and livelihoods of our crew members, jeopardizing their rights and dignity.
(d) Evasion of Responsibility- Clients and funders have often exploited loopholes in contracts and overworked and underpaid crew members, evading accountability for their actions.
(e) Influence Over Production: Certain producers yield undue influence behind the scenes, steering the Film & TV industry to serve their interests.
(f) Manipulation of Rules- Some producers manipulate rules to favour their financial gain.
(g) Control of Narrative- The ability to control narratives has perpetuated this cycle of injustice.
3. SCOPE OF APPLICATION
(1) The aim of this Sectoral Determination is to establish a framework for workplace relations within the film and television sector. Specifically, it governs the engagement between producers and all members of the crew.
(2) This determination pertains to the collaboration between producers in the film and television industry and the crew members involved in various productions, including television commercials, music videos, feature or short films, television series, and documentaries.
(3) An engager that has engaged the services of a crew member must comply with this Determination, especially the Film & Television producers.
(4) Neither the employer nor the crew member can exempt themselves from the regulations outlined in this sectoral determination unless the crew member provides full and informed consent. In such cases, the employer must inform the crew member about their rights according to this determination and clarify any aspects that cannot be upheld, along with the reasons for this.
4. DEFINITIONS
“agent” means a person who is legally authorised in writing to act for, or on behalf of, and represents the interests of, a director in contractual relations with an engaged.
“Basic Conditions of Employment Act” means the Basic Conditions of Employment Act, 1997 (Act 75 of 1997).
“employee” means, for the purposes of this sectoral determination, any crew member who works for another juristic or natural person, regardless of whether they are engaged as an independent contractor, and who received or is entitled to receive any remuneration.
“employment” means the engagement of a crew member, directly or through their agent, by a natural or legal person to perform any work, regardless of whether the crew member-
(a) is remunerated or not;
(b) is contracted for a specific period of time or to work for a specific production, or for an indefinite period of time; or
(c) is engaged as an independent contractor.
“employer” bears a corresponding meaning to engage.
“IDAA” refers to the Independent Directors Association Africa
“engagement” bears the same meaning as employment for the purposes of this sectoral determination.
“engager” means a person, natural or juristic who contracts with a director for services related to their trade for any form of remuneration.
“Crew member” means a natural person who renders film work services for the purpose of audio, audio-visual fixations and live performances.
“film & television industry” means the collection of natural and juristic persons who derive profit by means of the creation of audio and audio-visual fixations. This is to include the creation of content for entertainment, education, product promotion or any other reason whereby the direction is done. This definition includes television commercials, music videos, feature or short films, the television series, and documentaries.
“production” means the project of creating a film, commercial or music video, including planning developing and filming.
5. WORKING HOURS
(1) Working hours to change from 12 hours to 10 hours per day.
(2) Working days should be 5 days. If need be, the 6th day should be a half day.
(3) All crew members working on set to start and end work at the same time on productions. From interns to above-the-line crew members.
(4) All crew members working on set to get overtime after 10 hours of work with no differences in payment regardless of positions; which would be otherwise discrimination.
(5) All crew members to have at least 8-10 hours of mandatory turnaround time before going back to work on any given day. Regardless of demands in production whether local or international productions.
6. PAYMENT OF REMUNERATION
(1) Any remuneration due to a crew member must be paid to that crew member rightfully so, or their duly authorized agent, as per the contract of engagement-
(a) Should the engager fail to pay the crew member on time as per the contract, the crew member to automatically withhold the right of exploitation of the crew member’s image and/or job yet to be aired from the date of the breach until such time as the crew member has been paid inclusive of penalties which may be applicable.
(b) The engager will hold the crew member harmless for the withholding of services and/or exploitation rights when the payment due to the crew member is in arrears.
(c) This provision does not prevent the crew member from pursuing additional dispute resolution mechanisms.
(d) All crew members to receive a minimum of 20% salary increment annually on daily and weekly rates.
(e) Crew funds to be made available for personnel that can prove that they have not received payments over a predetermined amount by a certain point in time upon breach of contract.
(f) Black crew members to be paid equally with white crew members.
(g) Female crew members to be paid equally with male crew members.
7. PAYMENT DEDUCTIONS
(1) The employer cannot withhold any portion of a crew member’s pay unless:
(a) the crew member consents to the deduction in writing; or
(b) the deduction is mandated or allowed by law, agreement, court order, or arbitration decision.
8. TRANSPORT AND ACCOMMODATION
(1) The engager will arrange transportation for crew members, particularly when working hours extend beyond the usual 8 am to 9 pm timeframe, and when shooting locations are not accessible by public transportation.
(2) Should a crew member be required to work away from home the crew member must be provided with accommodation and their accommodation must:
(a) Be supplied free of charge to the crew member;
(b) Be clean, comfortable, suitable and safe for the crew member;
(c) Have clean towels and linen, hot water, bathing, heating, and cooling facilities; and
(d) Be a single room accommodation
9. HEALTH AND SAFETY AT WORK
(1) The engager must ensure all places of work for crew members must be safe, free of hazardous materials and conducive to the wellbeing of the crew member.
(2) The minimum standards as prescribed in the Occupational Health and Safety act 85 of 1993 must be adhered to.
(3) A regulatory body should be established, by government representatives or by the IDAA’s extension, to conduct regular set visits and in-house inspections to make sure that policies and laws are honoured as in the case of accessing permit applications and on public film shoots.
10. KEEPING OF SECTORAL DETERMINATION
(1) Every engager on whom this Determination is binding must keep a copy of the Sectoral Determination or an official summary, available at the workplace in a place to which the crew member has access.
(2) All production terms of contract are to protect all crew members as strongly as they do producers and above-the-line crew members.
11. REPERCUSSIONS TO VIOLATION OF SECTORIAL DETERMINATION
(1) It could be proposed to create a public platform in collaboration with the Department of Trade and Industry (DTI), all South African Film Commissions, and CIPC. This platform would allow producers who have achieved a certain status but have violated payment agreements and failed to settle debts within a specified timeframe to be identified and temporarily blacklisted. This measure aims to promote adherence to ethical production practices since reputational damage often carries more weight than financial penalties in the industry. Consequently, this would safeguard other crew members from falling victim to exploitation in the complex network of film production.
(2) Any person convicted of an offence in terms of any provisions of this Determination may be sentenced to a fine or imprisonment for a period not longer than three years.
12. EMPLOYMENT STATUS OF CREW MEMBERS
(1) This Determination deems the employment status of a crew member as an employee for the purposes of sections 112 – 126 of the Labour Relations Act, 66 of 1995 and Chapters Eight and Ten of the Basic Conditions of Employment Act, 75 of 1997.
(2) If a crew member who is a party to, or covered by, a written agreement with an engager, the agreement is conclusive proof for the purposes of the above-mentioned chapters and sections that the crew member is an employee of the engaged.
13. CONTROL OF NARRATIVES
(1) Recognizing the importance of ensuring diversity, authenticity, and ethical representation in narratives within the film and television industry. Acknowledging the power of narratives to shape perceptions, influence social norms, and impact individuals and communities seeking to establish guidelines that promote inclusivity, integrity, and responsible storytelling practices across all aspects of production.
Therefore, following provisions are to be made:
(1) Authentic Representation:
(a) Producers must strive to accurately represent diverse perspectives, cultures, identities, and experiences in their narratives.
(b) Cultural sensitivity and consultation with relevant communities shall be prioritized to ensure respectful and authentic portrayals.
(2) Avoidance of Harmful Stereotypes:
(a) Productions must refrain from perpetuating harmful stereotypes or caricatures that reinforce prejudice, discrimination, or negative biases.
(b) Responsible research and consultation with experts shall be conducted to mitigate the risk of misrepresentation or misinterpretation.
(3) Empowerment of Marginalized Voices:
(a) Efforts shall be made to amplify the voices and stories of marginalized and underrepresented groups, including but not limited to women, LGBTQ+ individuals, people with disabilities, and ethnic minorities.
(b) Opportunities for participation and leadership in all aspects of production shall be provided to ensure equitable representation and inclusion.
(4) Transparency and Accountability:
(a) Producers shall be transparent about their narrative intentions and the creative processes involved in shaping storylines and characters.
(b) Mechanisms for feedback and accountability shall be established to address concerns regarding narrative representation and impact.
(5) Education and Training:
(a) Continuous education and training programs shall be implemented to raise awareness about the importance of responsible narrative control and its impact on society.
(b) Industry professionals shall be encouraged to engage in ongoing learning opportunities to enhance their understanding of diversity, equity, and inclusion in storytelling.
(6) Collaboration and Consultation:
(a) Collaboration with diverse stakeholders, including community representatives, cultural advisors, and advocacy groups, shall be encouraged throughout the production process.
(b) Meaningful consultation and dialogue shall be prioritized to ensure that narratives are respectful, accurate, and reflective of diverse perspectives.
(7) Compliance and Enforcement:
(a) All productions to comply with this sectoral determination and take appropriate measures to enforce its provisions.
(b) Non-compliance with narrative control guidelines may result in penalties, sanctions, or other corrective actions as deemed necessary.
(8) Review and Amendment:
(a) This sectoral determination shall be subject to periodic review and amendment to reflect evolving industry standards, societal expectations, and best practices in narrative representation.
(b) Stakeholder input and feedback shall be solicited to inform the review process and ensure continued relevance and effectiveness.
14. TERMINATION OF CONTRACTS
(1) An employer must not end or decline to extend a crew member’s contract if the decision is influenced, entirely or partly, by the crew member’s exercise or proposed exercise of any entitlement, authority, or recourse granted to them by:
(a) a provision in the crew member’s individual contract; (b) this Determination or any other legislation; or (c) the request to engage in meaningful negotiations regarding contract renewal.
(2) An employer must not terminate or decline to renew a crew member’s contract if the decision is influenced, entirely or partly, by the crew member providing or intending to provide information or evidence regarding a complaint of bullying, discrimination, or harassment made by another individual under this or any other legislation.
(3) An employer must not terminate or decline to renew a crew member’s contract if the decision is influenced, entirely or partly, by the crew member becoming pregnant and/or requesting maternity leave as provided for by the Basic Conditions of Employment Act 75 of 1997.
(4) The provision and approval of maternity leave should be accommodated as far as applicable, considering the duration of the engagement period as well as the start and end dates.
(5) The employer must provide reasons for terminating or declining to renew a contract.
(6) The Commission for Conciliation, Mediation and Arbitration shall have authority over disputes between employers and crew members regarding work conducted under the engagement contract.
15. ENSURING EQUALITY IN THE WORKPLACE
(1) To ensure equality in the workplace IDAA proposes:
(a) Diverse Hiring Practices: Employers should actively seek diversity in their hiring practices, ensuring that opportunities are accessible to individuals from all backgrounds, regardless of gender, race, ethnicity, sexual orientation, or disability.
(b) Equal Pay Policies: Implementing transparent and fair pay policies that ensure equal pay for equal work, regardless of gender or other demographic factors.
(c) Inclusive Work Environment: Foster an inclusive workplace culture where all employees feel valued, respected, and supported. This includes providing training on diversity, equity, and inclusion and addressing any instances of discrimination or harassment swiftly and effectively.
(d) Representation in Content: Ensure that on-screen representation reflects the diversity of society, including diverse characters, storylines, and perspectives. This helps to challenge stereotypes and promote inclusivity.
(e) Opportunities for Advancement: Provide equal opportunities for career advancement and professional development for all employees, regardless of background. This includes mentorship programs, training opportunities, and pathways for promotion.
(f) Flexible Work Arrangements: Offer flexible work arrangements to accommodate the needs of employees, such as parental leave, remote work options, and flexible scheduling, to promote work-life balance and support employees with caregiving responsibilities.
(g) Anti-Bias Training: Provide training and education on unconscious bias to help employees recognize and mitigate biases in their decision-making processes, such as hiring, promotions, and project assignments.
(h) Partnerships and Collaboration: Partner with industry organizations, advocacy groups, and diversity initiatives to collaborate on initiatives that promote equality and diversity in the workplace.
(i) Accountability and Measurement: Establish clear metrics and benchmarks to measure progress towards equality goals and hold leaders and organizations accountable for creating inclusive workplaces.
16. PAYMENT AND OTHER AGREEMENTS TRANSFORMATIONAL MEASURE
The South African law should accept an electronically sent message, even a thumbs up emoji for example as a legally binding agreement. Under South Africa’s Electronic Communications and Transactions Act (25 of 2002) (ECTA), an emoji can be classified as data which refers to any electronic representation of information and a data message is defined as data produced sent received or stored electronically. According to Section 22 (1) of the ECTA, an agreement is not devoid of legal validity merely because it has been established between parties through data messages. Furthermore, Section 24 suggests that a data message’s declaration of intent or other statement isn’t void of legal substance simply because it is in the form of a data message or isn’t endorsed by an electronic signature but by other means from which the person’s intention or other statement can be deduced In an industry where much communication takes place over electronic channels such as WhatsApp it is imperative that South African law keeps up with the vastly evolving technology and times, so that exploitative producers and employers who avoid accountability and seek comfort in disappearing paper trails may be held liable.
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IDAA SECTORAL DETERMINATION
