If you do nothing, you can’t complain. If you do nothing, nothing will change for anyone.

Posted: April 28, 2011 in Uncategorized

Recently we became apprised of BECTU’s outreach to VFX artists working in London, England. BECTU is the UK’s media and entertainment trade union, the voice for British entertainment workers. In the interest of those readers who are working in the UK or maybe planning to in the future, the following was sent out to VFX artists working at companies known for noncompliance with employment laws:

Visual Effects is no longer a start up industry like 15 years ago when a small pool of skilled people may have had to help the company get round a corner. Today there are plenty of talented individuals who need work and many potential new entrants who are desperate to get into the industry. There can be no justification for deliberately understaffing a project in the currect economic climate. As those who actually do the work all know, the strategy of hiring (or switching from another show) only at the last minute is guaranteed to make a mess and ensure unnecessarily the need for extremely long working hours. The feeble excuse that “the clients made us do it” ( aka “leaves on the line”) begs the question of why, after so many years, this variable has not also been factored in as surely if this were truly a random effect, it would not happen repeatedly and throughout the lifetime of the project. That level of lack of anticipation is only either spectacular incompetence or a deliberate and calculated choice on the part of the company for the purpose of increasing profit as they can get you to subsidise the operation by doing lots of work for free.

Fortunately. it is possible to challenge this shameful and discredited nonsense.

UNPAID OVERTIME

Your employer is not entitled to insist that you work at all beyond your contracted hours and you are within your rights to decline to do so. The phrase “and other hours as necessary” or similar in an employment contract is only valid if accompanied by a system of annualised hours or some agreement on overtime pay for those hours so that you receive recompense in some way for every hour that you work. Your employer can take no action against you for refusing to do unpaid overtime. A contract is supposed to be of mutual benefit and this would so clearly not be. Cinesite has acknowledged that employees do indeed have a free choice in whether to do extra hours but that rather glib assertion sits uncomfortably with the proclamation of a “mandatory” longer day, with “Tenko” style patrolling of the floors morning and evening and not least with the granite face, poker up the arse expression, curling of the nose and lips and sudden smell of vinegar if you dare to remind them that you are an actual human being and need to return on occasion to the land of the living for sustenance with your own kind.

If you agree to unpaid overtime then you are in effect cutting your own salary as your hourly rate inevitably goes down.

Attempting to assert your rights with your employer can be both intimidating and stressful. BECTU (the Trade Union covering the film industry) can represent you on such occasions but only if you are a member.

In film industry businesses where there is union membership, this sort of thing cannot happen as the employees have the backing of a national organisation with the clout to stand up for them. You can contact them with information about insidious working practices and such details or your views on the matter would be handled in the strictest confidence.

BECTU can be contacted at:

BECTU
373-377 Clapham Road
London SW9 9BT
Tel 020 7346 0900
Fax 020 7346 0901

OVERTIME PAY

In the USA, the Fair Labor Standards Act (FLSA) requires that unless specifically exempted, employees covered by the Act must receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay.

It is not unreasonable for the company to provide an individual audit of exactly how many additional unpaid hours you worked in the year and what that represents both in terms of your salary and time off in lieu within an annualised hours system. This would allow you to use the information in future pay negotiations so that it aligns more closely to the contribution you actually make to the company’s profit margins. Of course, you need to be correctly filling in those workorders and as the company want you to do this, providing the information at the end of the year to you would be the clearest incentive for you to do so.

Your annualised total contracted hours amount to 1816 (with bank holidays).

If you work 10 extra hours per week, you reach the total before 1 October and should not work beyond that.

This represents 25% of your salary at the normal rate or 37.5% at the FLSA overtime rate. Calculate that against your salary and decide whether you want to give that much up as a charitable gesture to a profit-making enterprise especially as some of you work way beyond 10 additional hours per week.

It is also worth noting that this represents one quarter of an additional job.

BREAKS BETWEEN SHIFTS

Current legislation also requires that your employer allows every employee an uninterrupted rest break of 11 hours between shifts.

This means that if you work beyond 22:00 on any given day, your 09:00 normal start time the following day MUST be later by the amount of time you worked after 22:00 the night before.

This “compensatory rest” must be given at the earliest opportunity and the law states clearly that it should be taken the following day.

The legislation also places a strict duty of care on the employer towards their employees so that the latter do not suffer physical ill-health or mental distress as a result of the hours they are being asked to work.

Special circumstances can be invoked to compromise the normal, daily application of the 11 hour rule but these apply to limited conditions and the provisions on compensatory rest remain unaffected.

In essence, therefore, your employer cannot justify your working such excessive hours (i.e. after 22:00) as a continual practice over even a week because they would be unable to give you the compensatory rest to which you are entitled and which they are duty-bound by law to give you.

Further protection is available under law by opting-in to the Working Time Directive which then limits your working week to an average of 48 hours in any 17 week period. This doesn’t stop you having to work longer in any given week but the company must monitor your hours so that the average is not exceeded and give you time off if necessary to bring this figure down to within the required limit.

You can opt-in at any time by signing a form and presenting it to your employer.

This is your absolute free choice and if the employer does anything to influence you in this regard, they are in serious breach not only of the provisions of the Directive but more seriously of the duty of care.

IN SUMMARY

A company which took seriously its duty of care towards its employees would have a fully-worked out publicly available policy covering all aspects of time-management (both in terms of active monitoring and measurement) rather than a conspicuous lacuna and a total inability to describe any aspect of how such a thing would work. It would be able to say exactly how it ensured that nobody had to work overtime continuously because that is not what paid employment should be about. And it would be proud to demonstrate in concrete terms how it looked after its workforce.

There is, additionally, no free and open discussion of these issues either individually or collectively because in such a climate, where the company had to admit that they were depending on your goodwill entirely to cover the gap they failed to see coming, the intimidation could not take place.

Think about it.

If you do nothing, you can’t complain.
If you do nothing, nothing will change for anyone.

This is not just about Vancouver, Montreal, and Los Angeles. Artists are being exploited worldwide. It’s up to everyone to do something, contact your respective union that represents entertainment workers.
They are there to assist you organize your workplace. Together you can make a difference.

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Comments
  1. […] VFX Union? Vancouver’s IATSE local 891 blog posted this interesting info: Recently we became apprised of BECTU’s outreach to VFX artists […]

  2. Francis Owden says:

    “Your employer is not entitled to insist that you work at all beyond your contracted hours and you are within your rights to decline to do so.”

    Are you saying I can say to my boss I don’t want to work Saturday and Sunday for the next 2 months?

    Are you saying that I can maybe say, “Thanks, but 9 or 10 is my limit?”

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