"..."entertainment industry
agent" means a person who, for financial benefit caries
out any one or more of the following entertainment
industry activities on behalf of a performer:
(a) seeking or finding work
opportunities for the performer;
(b) negotiating the terms of an
agreement for, and the conditions of, a
performer;
(c) finalising arrangements concerning
the payment of the performer;
(d) negotiating arrangements relating
to the attendance of the performer at a
performance;
(e) administering the contract of the
performer with an entertainment industry
employer,
but does not include a person who
carries out those activities solely as an employee of any
such agent .... "entertainment industry employer" means a
person who employs any performer for the purpose of a
performance .... "manager" means a person (whether called
a personal representative or a personal manager, or
otherwise) who, for financial benefit, represents a
performer and who agrees, pursuant to a written
agreement, to carry out or arrange to be carried out any
or all of the activities of an entertainment industry
agent and other additional activities or duties specified
in the agreement on behalf of the performer, but does not
include a person who carries out those activities or
duties solely as an employee of any such manager;...
"venue consultant" means a person who acts on behalf of
an entertainment industry employer, for a fee or
remuneration paid by any such employer, and who arranges
for a performance by a performer at a particular venue,
but does not include a person who arranges for a
performance solely as an employee of a venue consultant
or an employer."
CLARIFICATION
1. Only entertainment industry
agents or managers, who represent performers in a
contract or transaction, may claim payment by way of a
percentage commission from the performer. The maximum
penalty for contravention is $2,500.00.
2. If two or more "entertainment
industry agents" are involved in the one contract or
transaction, the combined fee charged to the performer
may not exceed 10%. The maximum penalty for contravention
is $2,500.00
3. If a person acts on behalf of the
employer in a contract or transaction, the person is a
"venue consultant" for the purposes of the Act, and will
not be entitled to claim any fee or remuneration from the
performer. If a person acts as both an entertainment
industry agent and a venue consultant, that person may
only receive a venue consultant's fee. The account or
invoice given to the entertainment industry employer must
itemise the fee for the venue consultant separately from
the performer's fee. The fee for the venue consultant may
not be included in the performer's fee, and then
presented to the employer as a total or gross figure. The
penalty for failure to comply is $2,500.00.
4. A promoter or entertainment
industry employer is the person who is the end user of
the performance, and who is exposed to some financial
risk.
5. An entertainment industry agent,
manager or venue consultant does not become a promoter by
"buying" a performer/performance, and on-selling it to a
venue or venue operator for a fixed fee. This remains the
function of an entertainment industry agent, manager or
venue consultant and the provisions of the Act relating
to fees apply.
6. The Act and the licensing
provisions apply across all of the entertainment industry
and apply to performances in hotels, clubs, theatre,
function centres, international hotels and at corporate
and other private functions etc. The Act applies to all
persons who book and arrange a performance(s) by a
performer(s) including event companies,speakers bureaux
and public relations consultants. As set out in section
55 of the Act, "no stipulation .... or agreement made or
entered into ... operates to annul, vary or exclude any
of the provisions of the Act or the
regulations"
FEES TO
ENTERTAINMENT INDUSTRY REPRESENTATIVES
5. (1) For the purposes of section 38 (1) and (4) of
the Act, the following percentages are
prescribed:
(a) in the case of an engagement
involving film, television or electronic media - 10 per
cent;
(b) in the case of an engagement
involving live theatre or a live musical or variety
performance (being an engagement that does not involve
film, television or electronic media) - 10 per cent for
any period up to 5 weeks and then 5 per cent for any
period after 5 weeks;
(c) in all other cases - 10 per
cent.
(2) The following amounts (being
amounts payable to performers) are to be excluded when
calculating the percentage of fees or other remuneration
that an entertainment industry agent or a manager may
demand or receive for or in respect of the engagement of
a performer:
(a) travelling and meal
allowances;
(b) holiday pay
(c) any long service leave and
superannuation payments;
(d) any overtime or penalty payments
which are paid on an irregular basis;
(e) any award or minimum payments in
respect of rehearsals.
TRUST
ACCOUNTS
Money received on behalf of a performer by an
entertainment industry agent or a manager which is not
paid to the performer immediately must - * be paid to the
credit of a general trust account at a bank in New South
Wales and be held in accordance with the regulations; and
* be disbursed as directed by the performer within such
time as may be determined by the Council (but not
exceeding 14 days) after the performer becomes entitled
to receive the money.
A trust account under this section
must be kept exclusively for the purpose of money
received on behalf of a performer.
ACCOUNTING
RECORDS
An entertainment industry agent or manager must keep
accounting records in respect of money received on behalf
of a performer. Such accounting records must: * disclose
at all times the true position concerning the money
received; and * be kept at the principal place of
business of the entertainment industry agent or
manager.
6. (1) An entertainment industry agent
or a manager who is required to keep accounting records
in respect of money received on behalf of a performer
must, in relation to an engagement in respect of which
the performer has been paid, give the accounting records
specified in subclause (2) as soon as practicable to the
following persons:
(a) the performer;
(b) any other entertainment industry
representative who has represented or carried out
activities on behalf of the performer for or in respect
of the engagement for which the performer has been
paid.
(2) The accounting records to be given
are:
(a) a statement of the amount received
by the agent or manager on behalf of the performer;
and
(b) a statement of the amount paid to
the performer for the engagement.
(3) The entertainment industry agent
or manager who has received the money on behalf of the
performer must also give, as soon as practicable, a
statement of the amount of money received by the agent or
manager to the entertainment industry employer (or other
person) who has paid the performer for the
engagement.
AWARDS
AHA Hotels and members of TPEA are covered by Federal
Awards. ALL remaining NSW venues come under the
Musicians' (State) Award. Copies of Federal Awards are
available from the Registrar, Industrial Relations
Commission 80 William Street East Sydney. State Awards
are available at the Department of Industrial Relations,
1 Oxford St, Darlinghurst.
CANCELLATIONS
State Award provides for fourteen days notice of
cancellation for casual engagements. Federal Awards are
forty eight hours. Longer periods are common in contracts
but the above applies where no extra provision is
made.
BREAKS
Under the State award musicians are entitled to a
minimum of 15 minutes per hour.
Index
to Musicians Awards
