The Future of Work in the Media, Arts & Entertainment Sector Meeting the Challenge of Atypical Working With the Financial Support of the European Commission Prepared by: Pascale Charhon, Project Consultant, Charhon Consultants, Belgium Dearbhal Murphy, Deputy General Secretary of the International Federation of Actors (FIA) With the support of The Project Steering Group: Denis Miklavcic, SUKI GLOSA, Slovenia Séamus Dooley, NUJ Ireland Caspar De Kiefte, FNV KIEM, Netherlands Loris Grossi, SLC-CGIL, Italy Thomas Dayan, International Federation of Musicians Richard Polacek, UNI MEI Yuk Lan Wong, European Federation of Journalists The content of this report does not reflect the official opinion of the European Union. Responsibility for the information and views expressed herein lies entirely with the authors. Reproduction is authorised provided the source is acknowledged. Dear Reader, It is our pleasure to introduce this project handbook, The Future of Work in the Media, Arts & Entertainment Sector: Meeting the Challenge of Atypical Working. It is the result of a two-year, EU-funded project: Reaching out to Atypical Workers: Organising and representing workers with atypical contracts in the Live Performance and Audiovisual Sectors, which drew to a close at the end of October 2016. This project was made possible through the joint engagement and efforts of the International Federation of Actors (FIA), the International Federation of Musicians (FIM), UNI MEI (Global Union for the Media and Entertainment Sector) and the European Federation of Journalists (EFJ). The project aimed to create a space for the project partners and their members to engage with the challenges facing atypical workers in the Live Performance and Audiovisual sectors. Its objectives were to: gather and share experience on organising strategies of unions to reach out to atypical workers; develop advocacy work regarding more tailored social protection rights, improved working conditions, access to training and lifelong learning for atypical workers; reflect and develop fresh thinking regarding the urgent need to expand collective bargaining on behalf of atypical workers; share and exchange practice regarding service provision for atypical workers; explore the specific youth and gender dimensions of atypical work; address the issue of bogus self-employment. The core activities of the project have included the organisation of four European workshops and a final conference designed to enable a cross-fertilisation of the experiences of trade unions active in the Audiovisual and Live Performance sectors across the EU Member States. These have enabled the identification of a wide array of initiatives and practices across EU Member States, designed to respond to the challenges facing workers in the Media, Arts and Entertainment sector. The situation facing atypical workers may vary across Member States as a result of trade union membership density. Certainly, new ways to reach out to, mobilise and organise atypical workers have come into being in a concerted attempt to support atypical workers in the face of competitive and highly flexible labour markets. The present project handbook is structured in six main sections giving account of the exchanges and practices shared during the project. Section 1 provides an account of some of the main trends affecting atypical employment and work relationships in the Media, Arts and Entertainment sector. Section 2 introduces service-oriented approaches and actions put into place by trade unions to better address the needs of atypical workers. Section 3 summarises the international and European standards related to the fundamental social rights applicable to atypical workers. Section 4 takes stock of trade union approaches to addressing the needs of atypical workers through social dialogue and collective bargaining mechanisms. It also looks at barriers that might prevent collective bargaining from benefitting atypical workers particularly in light of competition law and how these might be addressed. Section 5 provides a clarification of the concepts and status surrounding dependent self-employment and bogus self-employment and examines how the trade unions have started to engage with this category of worker. Section 6 introduces issues that trade unions face in reaching out to atypical workers along with some examples of efforts to improve recruitment methods and organising models. The Future of Work in the Media, Arts & Entertainment Sector Meeting the Challenge of Atypical Working The project handbook also includes key recommendations as to the way forward and is published at a timely moment in relation to the current consultation initiated by the European Commission with a view to developing the proposed European Pillar of Social Rights. It is our hope that this project can contribute to advancing the debates related to the state of play of fundamental social rights applied to all workers as well as the legislative gaps to be addressed in the protection of workers with atypical employment status across EU Member States, including their access to freedom of association and collective bargaining. Certainly this reflection is of great relevance to the growing number of atypical workers in the collaborative economy, facing many of the same challenges that have long existed in the Media, Arts and Entertainment sector. We gratefully acknowledge the support of the European Commission for the project. Our renewed thanks also go to project consultant Pascale Charhon of Charhon Consultants for her dedicated work on this publication, to the members of the project steering group and to all our affiliates for their endless energy, passion and dedication and for their generosity in sharing their experiences and ideas in the context of this project. European Group of the International Federation of Actors, Euro FIA European Federation of Journalists, EFJ International Federation of Musicians, FIM UNI Europa - Uni Global Union (Media, Entertainment & Arts) Table of Contents Key Conclusions and Recommendations 4 1. Taking Stock of the Shifting Work and Employment Landscape in the Live Performance and Audiovisual Sectors 12 1.1. A First Snapshot 13 1.2. When ‘Atypical’ is Typical: Work and Employment Relationships in the Media, Arts and Entertainment Sector 14 1.3. The Gender and Youth Dimensions of Atypical Work 16 1.4. Reflection on the Implication of these Sectoral Trends 16 2. The Challenge of Reimagining Services to Meet the Needs of Atypical Workers 19 2.1. Adapting Union Support Services to Deliver for Atypical Workers 20 2.1.1. Developing individual benefits and an interest-based service offer for atypical workers 20 2.1.2. Offering access to training and skills development for atypical workers 21 2.1.3. Tailoring advisory services provision to support self-employed workers 22 2.2. Creating a Dedicated Structure for Atypical Workers within the Overall Framework of a Union 23 2.3. Challenges Moving Forward 23 3. Fundamental Social Rights for Atypical Workers 27 3.1. The Broad Legal Framework 28 3.2. Fundamental Social Rights and the Chimera of ‘Flexicurity’ 29 3.3. Trade Union Action to Promote and Protect Fundamental Social and Labour Rights 29 3.4. A Mixed Picture: How EU Law Approaches the Protection of the Fundamental Social Rights of Atypical Workers 30 4. Collective Bargaining and Atypical Workers 32 4.1. Setting the Scene: Collective Bargaining, International Standards and European Union Law 33 4.2. The Key and Future Challenge: Collective Bargaining for Atypical Workers 34 4.3. Approaches to Collective Bargaining for Atypical Workers 34 4.4. The Particular Case of the Live Performance and Audiovisual Sectors 35 4.4.1. General Overview of Collective Bargaining in the Audiovisual Sector 35 4.4.2. General Overview of Collective Bargaining in the Live Performance Sector 36 4.5. The ongoing challenge of establishing collective bargaining for self-employed workers or freelancers across the Live Performance and Audiovisual Sectors 37 4.6. The role of Trade Unions in protecting atypical workers in the Live Performance and Audiovisual Sectors: Selected Examples 37 4.7. A Spanner in the Works: Atypical Workers, Collective Bargaining and Competition Law 40 4.8. Where Economic Freedoms End and Fundamental Rights Begin: Reflection on Legal Ways Forward in Relation to the Competition Law / Collective Bargaining Clash 44 4.9. Using National Judicial Recourses and ILO Mechanisms to Better Enforce Freedom of Association and Collective Bargaining 45 4.10. Other Trade Union Responses to Strengthen Collective Bargaining for Atypical Workers 46 4.11. Concluding Thoughts on Complementary Actions at EU Level 47 5. Tackling Dependent and Bogus Self-Employment: A Key Challenge in the Arts, Media and Entertainment Sectors 51 5.1. Clarification of Concepts 52 5.2. The Grey Zone: the Legal Status of Dependent Self-Employed Workers 53 5.3. The Debate at European Level: Looking Towards the Future of Work in the EU 53 5.4. The Reality on the Ground: A Snapshot of Various Situations across the EU 54 5.5. Adapting to a Changing Paradigm: Trade Unions and Dependent Self-Employed Workers 58 5.6. Recommendations and Ways Forward 62 6. Building for the Future: Organising Atypical Workers in the Live Performance and Audiovisual Sectors 65 6.1. Building New Solidarities: Reaching out to, and Organising, Atypical Workers 66 6.2. What Works? Developing Trade Union Approaches to Reaching out to Atypical Workers 67 6.3. Keeping Pace with Digital Natives: