NSW Employment Contract with Acting Talent Agency - Is It Legal?

[Leon Wilson]

Twelve months ago my daughter entered into a 3-year written contract with an acting talent agency after being told verbally that there would be no conflict between the contract she was to sign and her work for a modelling agency she was already contracted to.

Having obtained only 1 acting role (worth $200) through the acting agency over 9 months, and not feeling fully engaged by them she has attempted to cancel the contract with the acting talent agency, giving three months notice. They have repeatedly refused to release her, and have said she is contracted, exclusively to them for 2 more years.

My question is not regarding the right of parties to enter into a contract as they deem fit, just whether or not this particular type of contract is legally binding under Australian contract law? (I understand that no legal advice is given by this forum, just personal opinions) And/or what avenues exist for her to leave the acting agency. These are the relevant facts:

1. The online ATO employee/contractor decision tool suggests that my daughter is an employee of the acting agency, not a contractor (although the contract stipulates otherwise).
2. While the contract allows the agency to terminate the contract at any time at their absolute discretion, no reciprocal discretionary rights to terminate are available to my daughter (“unfettered discretionary power”?)
3. The contract stipulates that she must pay the agent a percentage for ALL money she earns during that period (regardless of where sourced, including unrelated work).
4. No formal written negotiation regarding the contract was entered into.
5. This is a small industry. Acting agents are considered to hold a lot of power and getting an agent is an achievement. Other acting agencies, for there part, will not give any work to my daughter unless the original agency 'formally' releases her or acknowledges that she is free to be represented elsewhere.
6. Her modelling agency will no longer give her work that her acting agent might be in the market to place people into - even if the acting agent doesn't receive a brief for such (models are often employed for TV commercials, hence the conflict - perhaps the entertainment industry act 2013 and industrial relations code-of-conduct apply?)

Any thoughts?

 

[Tim W]

Most commonly, a theatrical agent is "employed" (so to speak)
by the talent, not the other way around.
The talent engages the agent to find the talent work.
The contract between the agent and the talent usually includes
a "no promises" clause - that is, that actually getting any work is not guaranteed.

It is theoretically possible that the agency is set up as a labour hire business,
in which case the talent may well be an employee.
But this is unlikely, especially in the case of child workers.
If however the talent is an employee, then why could they not simply resign?

Don't worry too much about the Control Test tool - that's not relevant here.
Wht you do next depends more on the express terms of the contract and any cancellation provisions.

As to the relevance of the Entertainment Industry Act 2013 (NSW) - was the agent hired before or after the commencement of that act?

 

[Tim W]

This is a small industry.

Agreed.

Acting agents are considered to hold a lot of power and getting an agent is an achievement.

A few agents are powerful. But only as powerful as their roster.
Most of them are not especially powerful.

Other acting agencies, for there part, will not give any work to my daughter unless the original agency 'formally' releases her or acknowledges that she is free to be represented elsewhere.

I would be interested to hear how you have come to this view.

Her modelling agency will no longer give her work that her acting agent might be in the market to place people into - even if the acting agent doesn't receive a brief for such (models are often employed for TV commercials, hence the conflict - perhaps the entertainment industry act 2013 and industrial relations code-of-conduct apply?)

Overall, I suggest that a call to the Alliance may be helpful. Contact details -> here

 

[Rod]

Any thoughts?

Yep - should never ever sign such a one sided contract. If the other party is not willing to negotiate for fairness then you can be sure they will not be looking after your/your daughter's best interests during the life of the contract.

If your daughter picks up work elsewhere the agent may have a case for a portion of the income she earns but even if that is the case your daughter is still better off having some income rather than no income.

What obligations are there on the agent to find her work? How many referrals/interviews/castings has your daughter attended?

You may be able to get out of the contract if the agent has failed to deliver what they promised in the contract. If they are not giving your daughter any opportunities, then sever the contract in writing. It then becomes their problem to sue you if they are not happy with your decision. They would have to show a court they are entitled to sue for non-performance and they would have to prove a loss. The court can't award damages if there are none.

Also the court would look very hard at an agent stopping someone from earning a living. If the agent has only given $200 of work in 12 months the court might well just use this one fact to throw out the agent's case.