Entertainment industry

For the purposes of the Act, a performer can be a singer, dancer, acrobat, actor, model, musician or anyone who gives a performance under an agreement.

For more information read Entertainment Industry Act 2013.

A performer representative is a person who, for a fee:

1. seeks or finds work opportunities for the performer
2. negotiates terms of a performance agreement
3. finalises payment arrangements for the performer
4. administers the agreement between the performer and an entertainment industry hirer
5. makes publicity arrangements for the performer.

Performer representatives may offer additional services including management of a performer's reputation, career or career development. If additional services are being offered by a performer representative then an entertainment industry managerial agreement will need to be used.

Performer representatives used to be called agents or managers.

Fees

If the performer is involved in live theatre, or a live musical or variety performance they can be charged up to 10% for the first 5 weeks of a performance and 5% for any period thereafter.

In all other cases (including film, television or electronic media), a performer can be charged a maximum of 10%.

The total amount due to a performer excludes travelling and meal allowances, holiday pay, long service leave, superannuation, overtime or penalty payments and any award in respect of rehearsals.

For more information, review the Entertainment Industry Regulation 2014, section 4.

A performer representative can only charge additional fees if they are providing additional services and have entered into an entertainment industry managerial agreement. Additional services may include photographs or legal costs associated with finding a performer work. A performer representative is not allowed to charge joining fees, audition fees or retention fees.

Recovering costs

If the entertainment industry agreement or entertainment industry managerial contract is terminated at any time (even in the cooling off period) a performer representative may be entitled to payment for any costs incurred prior to termination.

Payments

A performer representative is required to hold money on behalf of performers in a trust account in New South Wales if the payment is not made to the performer immediately. The funds must be distributed by the performer representative to the performer within 14 days of being received.

Financial records

A performer representative must keep:

• accounting records  of money paid to a performer representative for the performer's services
• a copy of each financial statement
• a copy of each written agreement the representative has entered into with the performer or on behalf of the performer
• accounting records at your main place of business for at least five years after the record is created.

If a performer requests any records, copies should be made available to them.

For more information on read the Entertainment Industry Act 2013, section 7.

An entertainment industry hirer is someone who hires a performer for a performance (for example a pub owner or the owner of a large venue).

They are required to pay a performer within one calendar month after the performance unless otherwise agreed with the performer in writing.

Typically, an entertainment industry hirer will negotiate the terms of a performance with a performer representative.

Payments

An entertainment industry hirer who is required to distribute funds to a performer, must do so within one calendar month of the performance unless otherwise agreed to in writing with the performer.

Financial records

An Entertainment Industry hirer must keep:

• accounting records of money paid entertainment industry representative for the performer’s service outlining the basis for which the payments were made and also any other particulars of the payment
• accounting records at your main place of business for at least five years after the record is created.

A venue representative is a person who organises a performance by a performer on behalf of an entertainment industry hirer.

Payments

A venue representative must provide any money received on behalf of the performer, to the performer within 14 days of receipt unless otherwise agreed to with the performer.

Financial records

A venue representative hirer must keep:

• accounting records of money paid to a performer representative for the performer’s service outlining the basis for which the payments were made and also any other particulars of the payment.
• accounting records at your main place of business for at least five years after the record is created.

If a performer requests any records, copies should be made available to them.

For more information on read the Entertainment Industry Act 2013, section 7.

1. Entertainment industry agreements

An entertainment industry agreement is a verbal or written agreement between a performer and a performer representative about standard services (listed above in ‘what is a performer representative’) the performer representative provides and the maximum allowable fees the performer representative charges.

2. Entertainment industry managerial agreements

An entertainment industry managerial agreement is a written agreement that outlines the extra services that will be provided relating to the management of a performer’s reputation, career or career development in addition to the standard services offered by an entertainment industry representative.

This may include submitting a performer for work, organising auditions for them, and arranging publicity and media interviews however cannot include fees for joining, auditioning, ongoing retention or for entering into a contract with a performer.

This agreement must be in writing and both parties must sign the agreement.

The agreement must fix the fees payable by the performer for the services specified in the agreement and must contain an "additional fee acknowledgement" stating:

• the performer understands that the written agreement allows fees to be charged in excess of the fee caps in return for the performer representative providing additional managerial services
• the performer understands that a cooling-off period applies
• the performer representative has provided the performer with the required information.

Before signing

A performer representative must provide the performer with adequate information including the Information for Performers Factsheet prior to the performer signing either the entertainment industry agreement or the entertainment industry managerial agreement.

This includes information on:

• what fees will be charged
• what services are offered
• the cooling off period
• the effect of entering into the entertainment industry agreement or entertainment industry managerial agreement on the performer.

If a child enters into an entertainment industry agreement the parents must be given the Children's Employment - Information for Parents Factsheet.

More information on hiring minors is on the Office of the Children’s Guardian website.

Cooling off periods

A three day cooling off period applies to all entertainment industry managerial agreements.

During the cooling off period a performer may terminate the entertainment managerial agreement without penalty by submitting notice in writing to the performer representative. However they may still be liable for any costs incurred by the performer representative such as travel to and from a performance location.

The cooling off period ends at 5pm on the third business day after the agreement was entered into.

An example

The cooling off period for an agreement signed on a Monday would have a cooling off period that ends at 5pm on Thursday of the same week.

The performer can waive the right to a cooling off period and this must be in writing at the time the agreement is signed.

If the regulations governing the entertainment industry are breached, possible penalties could be:

1. A fine.
2. Banned from continuing the business (for either a specified or indefinite period).
3. Required to compensate the performer for any loss or damages incurred.

NSW Fair Trading offers a free complaint and enquiry service for performers, performer representatives, venue representatives and venue hirers.

You can lodge a complaint either online, via post or by calling us on 13 32 20 between 8:30am and 5pm Monday to Friday.

• Entertainment Industry Act 2013

Entertainment Industry Regulation 2020

This information can help performers understand their rights and the obligations of their representatives under the Entertainment Industry Act 2013.

What is the role of a performer representative?

The role of a performer representative includes providing one or more of the following services:

• seeking or finding work opportunities for you
• negotiating terms and conditions of an agreement for a performance
• finalising arrangements relating to payments due to you
• negotiating arrangements relating to your attendance at a performance
• administering the agreement between you and an entertainment industry hirer
• making arrangements for publicity attendances and related publicity responsibilities.

These services are provided under the Entertainment Industry Agreement.

What is an Entertainment Industry Managerial Agreement?

An Entertainment Industry Managerial Agreement is an agreement in writing that recognises the additional services provided by a performer representative regarding the management of your reputation, career or career development.

If you decide to enter into this agreement it must contain an ‘additional fee acknowledgement’ that makes it clear you will be charged fees in excess of the fee caps in return for the performer representative providing managerial services.

Fees your representative may charge

Your representative may charge you fees for services provided under the Entertainment Industry Agreement.

If you’re involved in film, television or media you can be charged a maximum of 10% of the total amount you are paid for your performance.

If you’re involved in live theatre, or a live musical or variety performance you can be charged up to 10% for any period up to 5 weeks but only up to 5% for any time after that.

A performer representative must not charge fees above these amounts unless they are also providing you with career management services and you have agreed to these in writing in an Entertainment Industry Managerial Agreement.

Be aware you can’t be charged a fee merely for joining or auditioning to join or entering into a contract with a performer representative.

Cooling off period

Performers who sign a managerial agreement are entitled to a 3 day cooling-off period, in which they can seek advice about the arrangement if they wish, and terminate the agreement without penalty.

If you decide not to continue an agreement, you must tell the representative you are terminating the agreement within 3 days from the time the agreement is signed.

If you choose, you can waive the right to a cooling-off period but this must be in writing at the time the agreement is signed.

When should I be paid?

If any monies received by the performer representative on your behalf are not paid immediately, they must be placed in a trust account and paid to you within 14 days of receipt.

Important information for performer representatives in the entertainment industry about your obligations under the Entertainment Industry Act 2013

What is a performer representative?

A performer representative provides services to a performer for financial benefit under an Entertainment Industry Agreement or an Entertainment Industry Managerial Agreement.

Previously performer representatives were known as agents or managers.

What services does a performer representative provide?

A performer representative provides one or more of the following services to a performer for financial benefit:

• seeking or finding work opportunities for the performer.
• negotiating terms of an agreement for, and the conditions of, a performance.
• finalising arrangements relating to the payment of the performer.
• negotiating arrangements relating to the attendance of the performer at a performance.
• administering the agreement between the performer and an entertainment industry hirer.
• making arrangements for publicity attendances

What are Entertainment Industry Agreements?

There are two types of agreements:

Standard Entertainment Industry Agreement

A performer representative provides one or more of the services listed above. This agreement can be verbal or in writing. Fees can be charged but can't exceed the capped amounts set out in the regulations.

Entertainment Industry Managerial Agreement

This must be in writing. It must set out the services provided that are additional to those above. Those additional services must relate to the management of the reputation, career or career development of the performer. Higher fees can be charged but must be specified in the agreement. Both parties are required to sign a managerial agreement, which acknowledges the additional services being provided for the additional fee.

Managerial agreements must provide a 3 day cooling off period. The performer can waive this cooling off period. A performer can also terminate a managerial agreement prior to the end of the cooling off period. See our fact sheet on managerial agreements for more detailed information

What fees can be charged?

The Entertainment Industry Act 2013 and Regulations fix (cap) the fees that can be charged for providing services under a ‘standard’ entertainment industry agreement.

Additional fees in excess of the capped amount can only be charged under a managerial agreement, which must set out the additional fees and the additional services to which they relate. The additional services must be provided to the performer in order to exceed the cap for fees charged. A performer representative cannot charge joining fees or audition fees or retention fees.

Trust accounts and financial statements

Performer representatives who receive money on behalf of performers are required to hold that money in a general trust account at an authorised deposit-taking institution in New South Wales.

Money held on behalf of a performer must be disbursed as directed by the performer within 14 days of being received.

A performer representative must keep accounting records that disclose at all times the true position concerning money received on behalf of a performer and be kept at the principal place of business of the performer representative.

As soon as practicable after receiving money a performer representative must provide financial statements to the performer, any other entertainment industry representative who has carried out activities on behalf of the performer (in connection with the performance for which the money has been received) and the entertainment industry hirer by whom (or on whose behalf) the money was paid (see s.7 of the Act).

Record keeping

Accounting and other records are required to be held for at least 5 years at the performer representative’s principal place of business.

Records required to be held:

• accounting records in respect of money received on behalf of a performer
• copies of financial statements
• a copy of each written agreement the representative has entered into with a performer (or with another person on behalf of a performer).

A performer representative must provide copies of any records requested by a performer.

Venue representatives

A venue representative acts on behalf of an entertainment industry hirer to arrange one or more performances by a performer at a particular venue. There are specific accounting and record keeping requirements on venue representatives, which must be fulfilled. (See s.15, s.16 and s.17 of the Act.)

Entertainment industry hirers

An entertainment industry hirer is a person who engages or contracts any performer for the purposes of a performance. There are specific accounting and record keeping requirements on entertainment industry hirers, which must be fulfilled. (See s.18 and s.19 of the Act.)

Information performer representatives must provide

Performer representatives, when entering into an agreement with a performer (whether in writing or not) must also provide an information statement to that performer. The information statement is available on the NSW Fair Trading website.

Duty of Disclosure

A performer representative who is also a venue representative must disclose and provide written notice of that fact to both the performer and the entertainment industry hirer, in respect of a performance.

Special provisions for child performers

A performer representative must, before entering into an agreement with a performer who is a child, provide the parents of the child with any information required by the regulations relating to the conditions of employment of minors under the Children and Young Persons (Care and Protection) Act 1998 or any other Act or law.

This includes providing the information from Children’s Guardian.

Code of Conduct

Schedule 1 of the Entertainment Industry Act 2013 contains a Code of Conduct, which performer representatives are required to adhere to. Breaches of the Code of Conduct can result in the imposition of civil penalties.

More information

If you have questions about your rights and the obligations of performer representatives in the entertainment industry please contact NSW Fair Trading on 13 32 20.

Important information about managerial agreements under the Entertainment Industry Act 2013 for performer representatives and your obligations.

All agreements

All agreements with performers (performer representative agreements, whether in writing or not, and managerial agreements, which must be in writing) entered into after 1 March 2014 must comply with the Act.

See Fair Trading's additional requirements for child performers for more information.

Agreements entered into before 1 March 2014 ceased on 1 March 2015 and must be replaced by an Entertainment Industry Managerial Agreement if the performer representative charges fees higher than the capped amount set out in the Regulations.

More information is available on the NSW Fair Trading website.

Entertainment industry agreements

There are two types of agreements:

An Entertainment Industry Agreement

This provides standard services to performers and fees that can be charged under this agreement are capped. This type of agreement can be verbal agreement or in writing.

An Entertainment Industry Managerial Agreement

An Entertainment Industry Managerial Agreement provides one or more standard services, plus additional services, for which additional fees can be charged. It must be in writing.

Agreements for standard services

Under an Entertainment Industry Agreement the role of a performer representative includes providing one or more of the following services:

• seeking or finding work opportunities for the performer
• negotiating terms of an agreement for, and the conditions of, a performance
• finalising arrangements relating to the payment of the performer
• negotiating arrangements relating to the attendance of a performer at a performance
• administering the agreement between a performer and an entertainment industry hirer
• making arrangements for publicity attendances and related publicity responsibilities of a performer.

A performer representative can charge fees for providing these services. However, the Act caps the amount of fees that can be charged for providing these services:

For film, television, or media the maximum charge is 10% of the total amount payable* to the performer

For live theatre, musical or variety performances, the maximum that can be charged is 10% for any period up to 5 weeks, and then 5% for any period after 5 weeks.

*Note: When calculating the total amount payable to a performer, the following payments are excluded:

• travel and meal allowances
• holiday pay
• long service leave
• superannuation payments
• overtime or penalty payments made on an irregular basis (unless these were negotiated by the representative on behalf of the performer)
• award or minimum payments for rehearsals.

A performer representative can’t charge fees for:
joining

• auditions
• retention
• entering into a contract.

Managerial agreements

A performer representative may charge additional fees for extra services in excess of the capped amount if the performer enters into an entertainment industry managerial agreement with the performer representative and the additional services are actually provided to the performer.

There are specific requirements to be met in relation to managerial agreements:

• An entertainment industry managerial agreement must be in writing,
• The agreement must specify the additional services that are being provided relate to the management of the reputation, career or career development of the performer,
• The agreement must specify the fees payable for those additional services,
• The agreement must make it clear that both parties acknowledge the additional fees are being charged for the additional services being provided, and
• The agreement must provide a cooling off period of 3 days so that a performer may seek advice and if they wish, terminate the agreement without penalty. If the parties agree to waive the cooling off period of 3 days, the following notation must be included in the written agreement:

Notice of Waiver

I, (name of performer), of (address) give notice that I waive the cooling-off period provided for in this entertainment industry managerial agreement, entered into with (name of performer representative) on (date). This notice is given at the time of entering into the agreement.

Signed:

Date:

Terminating managerial agreements

If a performer decides to terminate a managerial agreement during the cooling off period the following notation should be used:

Notice of Termination

I, (name of performer), of (address) give notice that I am terminating the entertainment industry managerial agreement, entered into with (name of performer representative) on (date). This notice is given before the end of the cooling-off period and takes effect at the time given. I acknowledge (name of performer representative) may be entitled to receive such fees, remuneration or payments as are permitted under section 12 of the Entertainment Industry Act 2013, for services provided to me under the managerial agreement before the giving of this notice.

Signed:

Date:

More information

Contact NSW Fair Trading on 13 32 20.

This checklist is advisory only. It identifies essential (E) and best practice (BP) elements that should be included in Entertainment Industry Managerial Agreements.

Performer representatives can use this checklist as a guide for drafting their own agreements.

Introductory

• The heading makes it clear it is an Entertainment Industry Managerial Agreement. (E)
• The Agreement complies with the Entertainment Industry Act 2013 (the Act). (E)
• The Agreement uses definitions consistent with the Act. (BP)
• The Agreement identifies the parties to the Agreement by name. (BP)
• The duration or term of the Agreement is clearly set out. (BP)
• The Agreement is in writing. (E)

Services

• The services to be provided by the Performer Representative are clearly set out. (E)

This should include which services from section 5 of the Act are being provided. It should also specify the additional services being provided to the performer. The additional services must relate to the management of the reputation, career or career development of the performer.

Fees

• The fees being charged for the additional services are clearly identified. (E)
• The total fees being charged (“capped” fees under the regulations and additional fees under the managerial agreement) are clearly identified. (BP)
• There are no joining fees being charged. (E)
• There are no retention fees being charged. (E)

Acknowledgement of additional fees

• The Agreement contains a clause which clearly acknowledges that an additional fee is being charged for the provision of additional managerial services. (E)

Cooling off period

• The Agreement provides a three day cooling-off period. (E)
• The cooling-off period ends at 5pm on the third business day after the day on which the Agreement was entered into. (E)
• A performer may terminate an Entertainment Industry Managerial Agreement before the end of the cooling-off period, by notice in writing to the performer representative. (See sample notice at the end of this checklist.) (E)
• A performer may waive the cooling-off period at the time of entering into the managerial (E)

Information for performers

• Attached to this Agreement or provided separately to the performer is Information for Performers, as required under the Regulations. (E)
• If the performer is a child, attached to this Agreement and provided to the parents of the child performer, is the “Parents’ Fact Sheet” published by the Office of the Children’s Guardian. (E)

Performer representative obligations

• A trust account has been established for the purpose of holding money received on behalf of the performer by the performer representative. (BP)
• The performer representative will provide financial statements to the performer after receiving any money on behalf of the performer. (E)
• The performer representative will maintain accounting records in respect of money received on behalf of the performer for at least 5 years. (E)
• The performer representative abides by the Code of Conduct. (BP)

Performer obligations

• The Agreement specifies any obligations the performer has to the performer representative. This may include, for example, requirements to provide photographs, portfolios and up to date CVs. (BP)

Contract termination

• The Agreement makes provision for its termination by either party and clearly sets out the obligations the performer and the performer representative have upon termination. (BP)

General

• The Agreement is governed by the laws of New South Wales. (E)

The secretary of the NSW Department of Customer Service

Under the Entertainment Industry Act 2013, the Secretary of the Department of Customer Service must approve the form of the Notice of termination and the Waiver of the cooling off period.

A performer may terminate an entertainment industry managerial agreement by giving notice of termination before the end of the three day cooling-off period. The cooling-off period ends at 5pm on the third business day after the day on which the entertainment industry managerial agreement was entered into.

A performer may waive the cooling-off period in an entertainment industry managerial agreement by giving notice in writing at the time of entering into an agreement.

The following words have been approved:

Notice of Termination

I, (name of performer), of (address) give notice that I am terminating the entertainment industry managerial agreement entered into with (name of performer representative) on (date). This notice is given before the end of the cooling-off period and takes effect at the time given. I acknowledge (name of performer representative) may be entitled to receive such fees, remuneration or payments as are permitted under section 12 of the Entertainment Industry Act 2013, for services provided to me under the managerial agreement before the giving of this notice.

Signed:

Date:

Notice of Waiver

I, (name of performer), of (address) give notice that I waive the cooling-off period provided for in this entertainment industry managerial agreement, entered into with (name of performer representative) on (date). This notice is given at the time of entering into the agreement.

More information

If you have any questions about your rights and the obligations of performer representatives in the entertainment industry please contact NSW Fair Trading on 13 32 20.

The Office of the Children’s Guardian provides information on child employment in the entertainment industry.

Also see Information for parents.

Visit the Judicial Commission of New South Wales for information on how fines are calculated and what considerations may apply.

Industrial Relations Commission