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T45 force majeure: Pact and Equity agree alternative approach

29 May 2020

In response to the COVID-19 pandemic, it has been necessary for most, if not all, TV productions to suspend filming.

One issue which has sparked debate and attracted interest from both the UK actors’ and producers’ unions (Equity and Pact respectively), is how producers can and should be able to keep their actors engaged during such period of prolonged suspension – that is during a so-called period of ‘force majeure’ – and what payments should apply, in order to guarantee the continued retainment of that actor when the relevant production ‘comes back to life.’

An actor is referred to as ‘first call’ if they have to drop everything and work as and when required by the producer, effectively meaning they are exclusive to the production. ‘Second call,’ on the other hand, means that the actor’s existing professional commitments take priority and can be finished before the actor has to answer the producer’s ‘call’ for them to work.

The current rules and payments that producers need to comply with in order to retain actors on a first call or second call basis during an event of force majeure are set out in clause T45 of the Pact Equity TV Agreement 2019.

Last week, as a result of pressure from actors’ agents and Equity, Pact and Equity agreed an alternative option to the current T45 wording, in order to give actors a better deal. Many producers have simply been opting to move actors from first call to second call as a result of force majeure arising from COVID-19 to reduce their payment obligations, rather than paying the actor in full as per their previous first call entitlements.

From the actors’ perspective, the current language under T45 could be seen to effectively allow producers to “have their cake and eat it.” Producers may well be able to easily swap the actors back to being first call once productions restart, safe in the knowledge that there is relatively little prospect of the actors being able to find alternative conflicting work in the current climate (which would be permitted under their new second call status).

The new alternative approach is intended to reflect a middle ground. To some extent, it is also beneficial to producers, as it enables the artist to be ‘locked in’ to being first call at an earlier stage, which removes the risk that the actor may no longer be available once the production resumes.

Pact has made clear that the new alternative option should not be viewed as a replacement to the existing clause T45, which remains in force.

We have set out below a summary of the current T45 wording and the new alternative wording.

Current wording

The wording of clause T45 states that, if a force majeure event arises, producers can suspend the production.

  • During an initial three-week period of suspension, no fees are payable to the artist.
  • To retain the artist on a first call basis after the initial three-week period, the producer must notify the artist before expiry of the three-week period that they wish to retain the artist on a first call basis at the end of the period of suspension.
  • If that notification is given and the suspension continues for more than three weeks, the producer must pay to the artist during each week of continued suspension the amount the artist would have received if they were first call, and the guaranteed period is extended by the period of suspension unless the artist is prevented from performing an engagement entered into before the suspension (in which case the artist will be retained on a second call basis).
  • If the artist is retained on second call basis after the initial three-week period (either because no notification is given to the artist during the initial three-week suspension that the producer wishes to retain the artist on first call or because the producer notifies the artist that it is being retained as second call), the producer must pay a minimum of £103 (or £105 under the 2020 rates) as a weekly retainer until production resumes. During suspension, the artist must consult the producer regarding availability should the artist wish to accept other work.

New alternative wording

During a period of suspension as a result of COVID-19, the producer may elect to retain the artist on second call until they decide to ‘lock in’ the artist and move to retain them on first call.

If a producer wants to use this new alternative option, they should notify the artist and the following payments will apply:

  • Two engagement fees (capped at the engagement fee agreed under the artist’s original Form of Engagement) shall be paid as soon as practicable – these payments are recoupable against the artist’s future earnings. Where fewer than two weeks of filming are scheduled, the payments will be proportionately reduced. The artist can elect not to receive advance payment of these engagement fees, in which case (a) payment of fees will simply resume as normal under the artist’s original Form of Engagement once production resumes; and (b) the producer can continue to use this option with the following payments remaining due.
  • After the end of an initial three-week suspension period, in addition to the payment of the two engagement fee advances mentioned above, the producer should pay the second call payment of £103 (or £105 for artists under 2020 rates) per week until they decide to retain first call on the artist (or upon resumption of the production).
  • When the producer decides to switch the artist to first call, the artist should receive a fee of £557 per week from that point until production resumes.

It is also worth noting that none of the payments above attract use fees and, throughout suspension, the artist is obliged to discuss with the producer any potentially conflicting future engagements.

Pact has also made it clear that, irrespective of whether the producer has retained first call or second call or utilised the alternative approach above, if it is determined that the production will be permanently shut down, the producer will notify the artist and their original Form of Engagement should be formally terminated (with payments due and accrued, prior to termination being paid to the artist). 

Conclusion

It remains to be seen how swiftly, if at all, producers look to use the new alternative wording. The reality may be that many elect not to use the alternative mechanism until either (a) they are much closer to resuming production; or (b) they are notified by the actor of a possible conflicting commitment and therefore need to make the actor first call to secure their commitment to the production.

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