This is an excerpt of an article by Nick Thomas-Webster (originally written for The Stage)
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The National Minimum Wage enshrined in UK law lays down the minimum rates of pay that employers must pay employees – it is the law and nobody can absent themselves from the law. For the legally minded the case that established that is R v Brown  1AC 212 – for the ordinary people let me offer a scenario. An unhappy motorist decides that he doesn’t want to pay Road Tax or obey speed limits so he signs an agreement with himself not to accept the Road Traffic Laws that encompass these rules – how do you think the Police and Swansea will react to that piece of paper? and that is exactly the same principle for the National Minimum Wage, so your Release Form or Agreement is not worth the paper it is written on.
“But you have volunteered to work” is another ploy used by the Film Companies. Not true either. Volunteers must have the right to decide the hours they work, the nature of their work, the way they carry out their work and the length of time they work – in other words complete freedom. You have a call sheet, a time to be on set, a location for the set and a Director or 3rd AD telling you what to do (i.e. how to perform your work) – hardly a volunteer! I must stress that Volunteering for National Charities (Registered with the Charities Commission) is allowed, as long as the above criteria are fulfilled, but to my knowledge no Film production companies are registered charities. If they claim they are it’s a very simple check on their website http://www.charity-commission.gov.uk/
Having established that you are therefore an employee and entitled to your wages what do you do?
1. FIRST WRITE TO THE PRODUCTION COMPANY.
I suggest you first write to the production company (address on the Call Sheet or emails) and tell them you want paying under the National Minimum Wage Act 1998 for your time on set. You should tell them when you arrived, when you left and what part you played. Add up the total number of hours and multiply by hourly rate (The current NMW rates can be found at: http://www.direct.gov.uk/en/Employment/Employees/TheNationalMinimumWage/DG_10027201
You have a period of 3 months from the date you worked to file a claim for wages with the Employment Tribunal Service so you should invoice them within 10 days of finishing your work.
2. FILE A CASE WITH AND EMPLOYMENT TRIBUNAL:
If you do not hear back within 7 days send them a reminder and say that you will file a case with the Employment Tribunal if monies are not forthcoming – if still no response now is the time to file a claim. Don’t worry, its easy, its free and you can do it online.
The claim is started by filing a form ET1 which you can do online
Scroll down and click on the “Download ET1 Claim Form link” this will open a window in which there is a form for you to fill out – it is quite simple and self explanatory and there is a helpful guide as to completing. However you should take note of the following:
Section 2 Respondents Details – this is the film production company not the agency or person who booked you or who advertised. You can find out their name from emails, call sheets or the release form they asked you to sign – if you haven’t got their address check on the Companies House Website (http://wck2.companieshouse.gov.uk/04fc983ed9e75f4fdc1d63170aad2180/wcframe?name=accessCompanyInfo) and use the Registered Office address.
Section 4 Employment and Benefits – check 4.9 Compensation only box
Section 5 Your Claim – click only in box d “arrears of pay” and in 5.2 note down the days you worked the hours you were on set etc.
Section 6 What Compensation are you Seeking – list here the sum of money you are entitled to by taking the total number of hours you were on set from arrival to departure including lunch and other breaks. Multiply the total hours by the applicable NMW as per the current levels) £5.93 per hour today and insert this total into the box. Put a brief explanation of the hours worked in the box if you wish.
Fill out the other sections if you have a Representative (maybe a union rep or a trusted relative). When you have done that – check through again (use back space arrows – your information will be saved. If everything is correct then its time to submit your claim. This is done by clicking the red button “Submit Completed Claim” on the first page, and that’s it done. You will receive an email acknowledgement and then a few days later written confirmation from the Tribunal through the Royal mail. You may also receive a call from ACAS (a government body set up to dry and mediate before court action) tell them the story and say you will settle for the amount due.
3. USUALLY THEY WILL NOW SETTLE
What happens next: it can vary, some people will receive a call from the Production Company apologising and asking for bank details to make an immediate payment – others will send a cheque. In the vast majority of cases you will get your payment with no further action.
4. ON THE DAY OF THE TRIBUNAL
For those that do not get payment I am afraid its s tribunal hearing – don’t worry though, some employers will “take it to the wire” and will only offer payment if you turn up at Tribunal. When you arrive ask the Clerk for an expenses claim form – your travel, loss of any earnings, child care costs etc are paid for by the Tribunal Service. When your case is called go into the room. The chairman will be very helpful and will do all that they can to assist you. You will be asked to give your side first and need to establish 5 things:
1) You were an employee – ask the Respondent if you were required to attend at a certain time, if the answer is no produce call sheet or email etc and offer it as evidence – it will be fairly easy to establish this
2) You were told to work at a certain place – again ask if there was an alternative place for you to work at or whether you were required at just one place – again use email/call sheets etc
3) You were told what to do – ask if the extras were informed in any way what they should do, stand, sit down, look up etc or even “exactly the same thing again please” these are all directions.
4) You were present for the claimed number of hours – again call sheets/emails logs etc or a signing in/out chit can be used.
5) You are entitled to the National Minimum Wage (at whatever level is current)
That should be it – if you bear the above points in mind any questions you are asked by the Respondent or the Tribunal are covered. One question asked last week was “Why did you sign an agreement to work for nothing and then claim wages” to which the answer was “The law gives me the right to earn a wage just the same as anybody else on that film set – I thought that the form was a joke – it isn’t worth anything”.
There are a number of bodies that may help you, your Union, Equity or Bectu – there are discussion boards on the Internet and Groups within Facebook – either way help is there and available – don’t be put off. Its your money, you are entitled to it, you have earned it and you should have it.
A number of people have asked me whether taking this action personally has harmed my career – the answer is no. I did have a call from a British Director who told me “You will never work on one of my film sets unpaid again” !! Great so the message got through then. I still get regular roles in the UK and thanks to the power of the Internet my case was reported in the USA so I now get roles over there as well. I have entered the Production side with my own Studios and a 28 acre site of Locations and old derelict buildings in the New Forest. Yes we only employ paid cast and crew on our commercial features and I specifically exclude anybody that has worked on an unpaid production in the last 6 months as do all of the casting agencies we use.