Reply to: contract advice please

[Taita]

Thanks Taita, great advice, I'll look into that.

The musicians I'll be hiring are highly skilled, but they won't have had the advantage of rehearsing, and practicing as I will have, so it won't be nearly as good. If it were better paid, then the deps would be willing to sit in on the show a couple of times to get to know it. It won't reflect badly on me, in fact people will probably think I'm a much better musician than any of the alternatives!

As a worker I sympathise but as a show goer I may have an altogether different view!

[neilsolaris]

Thanks Taita, great advice, I'll look into that.

The musicians I'll be hiring are highly skilled, but they won't have had the advantage of rehearsing, and practicing as I will have, so it won't be nearly as good. If it were better paid, then the deps would be willing to sit in on the show a couple of times to get to know it. It won't reflect badly on me, in fact people will probably think I'm a much better musician than any of the alternatives!

[Taita]

Hi,

Thanks again. I'm a self-employed person, I'm not trading as a limited company. However, for the purposes of this production I have to power to delegate as much as I want. I know for other shows, musicians are usually required to work for a certain percentage (often 70%) but that's not the case here.

My plan is, whenever I'm offered any other work, is to accept other work and get a dep in. The disadvantage from their point of view with this arrangement is that the standard of the music is going to suffer badly, but that's their problem I suppose! Sometimes the best way to learn is from mistakes, so I'm doing them a favour in the long run!

I think most of the advice offered here relates to self-employed people as defined by the Employment Agency Acts and Regulations. A trace of ancient memory tells me that a musician is an 'entertainer' and therefore not covered by this legislation.

I may be totally mistaken about this as the memory is very ancient and things change..... however, I would suggest contacting ACAS (who are experts on employment laws) 08457 47 47 47 or HMRC. You do not need to identify yourself to gather information!

[kingcook]

My plan is, whenever I'm offered any other work, is to accept other work and get a dep in. The disadvantage from their point of view with this arrangement is that the standard of the music is going to suffer badly, but that's their problem I suppose!

And the disadvantage from your POV is that your business will suffer because you're palming off 5hit musicians to your clients.

[neilsolaris]

Hi,

Thanks again. I'm a self-employed person, I'm not trading as a limited company. However, for the purposes of this production I have to power to delegate as much as I want. I know for other shows, musicians are usually required to work for a certain percentage (often 70%) but that's not the case here.

My plan is, whenever I'm offered any other work, is to accept other work and get a dep in. The disadvantage from their point of view with this arrangement is that the standard of the music is going to suffer badly, but that's their problem I suppose! Sometimes the best way to learn is from mistakes, so I'm doing them a favour in the long run!

[Wanderer]

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

Don't expect any good advice from us! My recommendation would be to join your union - they will carry a lot more clout on your behalf than you will ever do as a single person.

As for them offering you work which may or may not eventuate, it's a business decision for you to decide if you want to work on those terms. Most of us are IT contractors and we have it written into our contracts that we may not be offered work on any particular day but that's to work around the IR35 rules as much as anything and we tend to do much longer assignments so it's less of a risk.

As for the self employed question, are you trading as a LTD company or sole trader? If you want to determine your employment status then have a look at HMRC's Business Entity Tests. From what you say about your working practices, it sounds like you are self employed. If you can send a substitute without restriction (put in deps as you put it) then you are leaning towards being outside IR35. If you actually DO subcontract all or part of the work out for a particular engagement then you are a slam dunk for being self employed (eg, outside IR35).

[LisaContractorUmbrella]

I assumed 'Company' in this context was a Production Company ie - the cast/performers....

Oh, our arty-friends!

Doh! Think you are right there Stek

[stek]

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

I assumed 'Company' in this context was a Production Company ie - the cast/performers....

Oh, our arty-friends!

[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

[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.

[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?

[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.

[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.

[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]

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.