Fair Trading can take enquiries about:
- The legislation and rights and responsibilities of performers and performer representatives.
- Complaints about the performer not being paid within the specified timeframe.
- A breach of agreement terms.
- Fees exceeding the capped amounts set out in the legislation.
What is a performer representative?
A performer representative is a person who, for a fee:
- seeks or finds work opportunities for the performer
- negotiates terms of a performance agreement
- finalises payment arrangements for the performer
- administers the agreement between the performer and an entertainment industry hirer
- 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.
Entertainment industry hirers and venue representatives
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).
An entertainment industry hirer is 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.
A venue representative is a venue’s employee who organises a performance on behalf of an entertainment industry hirer.
Types of agreements
1. Entertainment industry agreements
An entertainment industry agreement is a verbal or written agreement between a performer and a performer representative that sets out details about services the performer provides and the 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 however cannot include fees for joining, auditioning, ongoing retention or for entering into a contract with a performer.
If this agreement is chosen, it must clearly state that a performer will be charged an additional fee on top of the maximum commissions a performer representative can charge in return for offering the additional services.
If the entertainment industry agreement is used, the representative may submit a performer for work and organise auditions for them. If an entertainment industry managerial agreement is chosen, the representative might also arrange publicity and media interviews.
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 the additional managerial services
- the performer understands that a cooling-off period applies
- the performer representative has provided the performer with the required information.
A performer representative should provide the performer with adequate information including the code of conduct 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 information related to the employment of minors.
More information on hiring minors is on the Office of the Children’s Guardian website.
Cooling off periods
A 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.
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.
Fees, costs, payments and financial records
What fees can a performer representative charge?
If the performer is involved in live theatre, or a live musical or variety performance (that is, any engagement that does not involve film, television or electronic media) they can be charged up to 10% for the first 5 weeks of a performance and 5% for any period thereafter.
For a performance lasting 7 weeks, 10% can be charged for the first 5 weeks. 5% is the maximum that can be charged for the last 2 weeks.
For more information, review the Entertainment Industry Regulation 2014 section 4.
In all other cases where the performance is 5 weeks or less (including film, television or electronic media) a performer can be charged a maximum of 10% of the total amount due to them for their performance.
Additional charges can be negotiated and agreed to in an entertainment industry managerial agreement.
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.
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.
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.
What financial records am I required to keep?
If you are an industry hirer or venue representative:
you must keep:
- accounting records (eg financial statements / receipts) paid to a performer representative for the performer's services
- payment details
- 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 your obligations, read the Entertainment Industry Act 2013, section 7.
What are the penalties for non compliance?
If the regulations governing the entertainment industry are breached, possible penalties could be:
- A fine.
- Banned from continuing the business (for either a specified or indefinite period).
- Required to compensate the performer for any loss or damages incurred.
Further information and fact sheets
- Entertainment Industry Act 2013
- Entertainment Industry Regulation 2014
- Judicial Commission of New South Wales - How are fines calculated and what are the considerations?
- Office of the Children’s Guardian - Children’s employment in the entertainment industry
- Office of the Children's Guardian - Information for parents
- Industrial Relations Commission
- NSW IR Information for Performers
- Factsheet - Guide for Performer Representatives
- Factsheet - Entertainment Industry Managerial Agreements
- Factsheet - Entertainment Industry Managerial Agreement Checklist