contract advice please

[neilsolaris]

Hi,

I'm a performer deciding whether or not to accept a dodgy contract, and wondered if anyone here could help me.

The clause I'm least happy about states that "if for any reason the Company cannot perform some or all of the performance, you will not receive a fee for those performances".

Firstly, I've never agreed to this kind of clause before. If I turn down other work and then one of the performances is cancelled, I lose out. If I get a dep in (which I'm allowed to), that solves the problem for me, but not for the dep. Presumably in that situation I'm a agent fixing a contract between the Company (principal) and dep (3rd party)? However, would I be correct in assuming any terms I agreed to would apply to the dep?

Also, does a contract actually exist? In effect, what it is saying is it might provide me with work, or it might not (even though I realize this is not the intention of the person who prepared it). It doesn't seem very definite to me, and I thought an offer had to be more definite than that.

For the record, I understand that sometimes performances get cancelled, and as long as I haven't turned down other work, and I've received sufficient notice, I'm happy not to demand a cancellation fee. But I don't like being forced into agreeing that at the outset.

There are some other dodgy clauses, but they can wait for now! Thanks very much for your help.

[cojak]

Welcome NS

I'm sure someone will be able to answer this for you.

[neilsolaris]

Welcome NS

I'm sure someone will be able to answer this for you.

Thanks cojak!

[BolshieBastard]

Hi,

I'm a performer deciding whether or not to accept a dodgy contract, and wondered if anyone here could help me.

The clause I'm least happy about states that "if for any reason the Company cannot perform some or all of the performance, you will not receive a fee for those performances".

Firstly, I've never agreed to this kind of clause before. If I turn down other work and then one of the performances is cancelled, I lose out. If I get a dep in (which I'm allowed to), that solves the problem for me, but not for the dep. Presumably in that situation I'm a agent fixing a contract between the Company (principal) and dep (3rd party)? However, would I be correct in assuming any terms I agreed to would apply to the dep?

Also, does a contract actually exist? In effect, what it is saying is it might provide me with work, or it might not (even though I realize this is not the intention of the person who prepared it). It doesn't seem very definite to me, and I thought an offer had to be more definite than that.

For the record, I understand that sometimes performances get cancelled, and as long as I haven't turned down other work, and I've received sufficient notice, I'm happy not to demand a cancellation fee. But I don't like being forced into agreeing that at the outset.

There are some other dodgy clauses, but they can wait for now! Thanks very much for your help.

As far as IT contractors are concerned, we prefer contracts that clearly state 'no work to be done, no payment made' or words to that effect. To be paid when there is no work is, for us, a pointer to being an employee 9which we dont want to be).

Apart from that, do you honestly think you should get paid when there is no work? Your first answer maybe 'Yes' but if that also means you become an employee of whoever is issuing your contract and gives them the right to say 'OK, we need you to appear at the other end of the country 9am tomorrow for rehersals' are you ok with that?

If yes, fair enough but, you have to be careful if you want your contract to be like an employee's if you still wish to retain some independence.

[neilsolaris]

Thanks for your advice.

I hadn't considered that. Interestingly, there's a court case at the moment about whether freelance musicians (which I am myself) should be classed as self-employed or employees, particularly with regard to NI contributions. As a result, I'm owed quite a lot of money, as the people I've worked for are waiting for the outcome in the courts. Apparently actors are often classed as employees when they have a long run or work, but freelance musicians have always been classed as contractors in the UK. I know that there's a few other tests that the courts go through to decide if someone is self employed (is it called multiple reality test?). As well as the control test you mention, I provide my own tools (musical instrument), and can delegate (put in deps without restriction). I've forgotten some of the other tests now, but I remember I qualify for the vast majority or tests as a contractor.

However, if it were cancelled with ample notice I don't really mind, as long as I haven't turned down any other work as I mentioned. I know in the case of private music teachers, most teachers insist that if the pupil, for whatever reason, cannot attend their lesson, they are still liable to the full lesson cost. Is that any different to my situation here?

[BolshieBastard]

Thanks for your advice.

I hadn't considered that. Interestingly, there's a court case at the moment about whether freelance musicians (which I am myself) should be classed as self-employed or employees, particularly with regard to NI contributions. As a result, I'm owed quite a lot of money, as the people I've worked for are waiting for the outcome in the courts. Apparently actors are often classed as employees when they have a long run or work, but freelance musicians have always been classed as contractors in the UK. I know that there's a few other tests that the courts go through to decide if someone is self employed (is it called multiple reality test?). As well as the control test you mention, I provide my own tools (musical instrument), and can delegate (put in deps without restriction). I've forgotten some of the other tests now, but I remember I qualify for the vast majority or tests as a contractor.

However, if it were cancelled with ample notice I don't really mind, as long as I haven't turned down any other work as I mentioned. I know in the case of private music teachers, most teachers insist that if the pupil, for whatever reason, cannot attend their lesson, they are still liable to the full lesson cost. Is that any different to my situation here?

As regards your final para, for freelance \ employee status, it's not really a question of ample notice and you're happy / insufficient notice and you expect to be paid and the teacher \ pupil scenario is different again really.

The reality is, do you get paid whether or not there's no work not, how much advance warning you get.

You can have a contract reviewed by someone like Bauer & Cottrill who would be able to give pointers regarding self employment but the question of whether to accept the terms is one for you.

As a rule, if Im not happy with contract clauses, I try to get them negotiated out. If the contract issuer doesnt agree to make the changes then, its a question of accept or look for another contract.

[BlasterBates]

I would assume that a musician being paid only for performances would not be an employee. It would have to be someone who is guaranteed pay over several months, e.g musicians or actors for a season in a play or musical. I presume also that you will be paid a percentage of the ticket sales or what ever fee is agreed with the organiser.

[northernladuk]

I would assume that a musician being paid only for performances would not be an employee. It would have to be someone who is guaranteed pay over several months, e.g musicians or actors for a season in a play or musical. I presume also that you will be paid a percentage of the ticket sales or what ever fee is agreed with the organiser.

Which is interesting. Do you get paid for practising. We are assuming a musician just roles up to the theater and starts playing. I would think the difference between getting a fix sum for the whole shabang compared to being paid a standard rate over time to come in and practice would make quite a difference?

[neilsolaris]

Thanks for all your advice.

It seems to me there are two issues here. Firstly there is the question about the employee/contractor complication, but I suspect I needn't worry to much about this.

The other one is whether the contract is valid or not, but from what you say, it seems the exclusion clause doesn't make the contract invalid, as I was hoping it would. I did try to negotiate it, but the producer (who's also the director and sole shareholder of the company) was not going to budge on this clause. The problem is there are a lot of desperate musicians around, so he wouldn't have too much of a problem finding someone else, and I can't be too picky in this current climate!

I suppose I assumed that if you book someone to work on a specific date, and they agree to it (and there is consideration from both sides, intention to create legal relations etc) then the offerer legally has to pay the fee, as long as the offeree fulfills their side of the obligation. I assumed that if the offerer announced that he would not provide the work as promised, this would count as anticipatory breach of contract, and the offeree could demand the full fee. If I've got this wrong maybe someone could correct me.

However, with the exclusion clause I suppose the above doesn't apply, although I was hoping the exclusion clause would made the contract invalid (because he's effectively not guaranteeing to provide work, therefore am I able to agree unconditionally?). The fee by the way is very low, and the contract doesn't state whether this includes practice time (which I do have to a lot of). Given the low fee I don't suppose it does cover practice though.

There is a musicians' union, but I was too tight to update my membership, hence why I'm writing to this forum for advice!

Thanks again.

[LisaContractorUmbrella]

The contract does state that 'if the Company cannot perform you will not receive a fee' - I would have thought that if you then operate as a Company you would be within your rights to send another musician in your place