The Modern Awards Review 2023-2024 represents a pivotal opportunity for the visual arts to secure improved workplace rights and entitlements. The Modern Awards Review Arts and Culture Sector Discussion Paper by the Fair Work Commission invites submissions from artists, arts workers and employer groups to help investigate potential gaps in coverage within the arts and cultural sector.
This guide aims to assist in responding to the questions raised in the Discussion Paper. Make sure to tailor your responses to specific experiences, examples and case studies for a more impactful submission.
Submissions close Monday 4 December 2023.
Submit via email to email@example.com
The Fair Work Commission has released a document explaining the various Review processes, which includes a submission cover sheet.
Who are you, an organisation (employer) or arts worker / artist (employee), and give context for why you are submitting.
Using numbered paragraphs, outline the main issues you want the Fair Work Commission to consider as part of the Modern Awards Review 2023-34 including your responses to any questions set out in Commission discussion paper. If you only have the capacity to answer one question, it could be question 1:
Chapter 2: The arts and culture sector
1. Are there particular industries or occupations that should form the focus of the Commission’s consideration of the arts and culture sector in this Review? If so, why?
Focus of Consideration:
- Visual Arts, Craft and Design
- Existing awards lack meaningful coverage for the visual arts.
- Demonstrate how you may try to adapt existing awards to meet the occupations in your gallery/organisation and explain why this is not a sufficient approach.
- Include case studies to explain failed attempts to apply existing awards, ordinary hours or meal breaks don’t apply, roles do not match, inappropriate salary rates, specialised expertise not considered.
If you have the capacity to answer more than one question and would like some notes to consider, please see below.
If possible, include references to relevant sections of the Fair Work Act 2009, or other legislation or specific clauses in modern awards that apply.
Tell the Commission your proposals to the address the issues you have raised in your submission. If you are proposing that the Commission should consider varying an award, you can include draft wording for the proposed variation.
Chapter 2: The arts and culture sector
2. Are there any industries or occupations that should be added to or removed from our consideration of the arts and culture sector for the purpose of the Review more broadly?
The visual arts, craft and design sector is missing from the industry list.
The following are some examples of what is missing from the occupations list:
Exhibitions / Collections
Conservator / Registrar
Educators / Public Programs
First Nations (identified roles)
Front of House / Reception / Visitor Services
Gallery Technician / Preparator / Art Handler / Installer
Marketing / Communications / Publicity
Studio Assistant / Coordinator / Manager
Chapter 4. Modern awards with possible coverage in the arts and culture sector
5. Are there employees working in the arts and culture sector that may be covered by an award that has not been included in this chapter?
List any existing Awards that you may apply to yourself or employees that are not included in the following list:
- Miscellaneous Award
- Amusement, Events and Recreation Award
- Book Industry Award
- Broadcasting, Recorded Entertainment and Cinemas Award
- Graphic Arts, Printing and Publishing Award
- Hair and Beauty Industry Award
- Journalists Published Media Award
- Live Performance Award
- Local Government Industry Award
- Mannequins and Models Award
- Professional Employees Award
- Textile, Clothing, Footwear and Associated Industries Award
- Travelling Shows Award
6. Are there employees performing work of a similar nature to the work performed in the arts and culture sector that are not currently covered by an award but should be?
Yes, the majority of occupations in the visual arts, craft and design, including artists are not covered by an award but should be. The Live Performance Award provides an example of the depth of specialisation, breadth of practice and types of work that should be included in a fit-for-purpose award for the visual arts, craft and design.
Chapter 5. Potential gaps in award coverage of the arts and culture sector:
9. Do parties agree that the Miscellaneous Award may not cover certain workers, such as artistic directors or media producers?
The Miscellaneous Award is not fit for purpose and doesn’t align with the type of work in the visual arts, craft and design sector in the way that an award should.
Provide examples of how and why e.g. ordinary hours or meal breaks don’t apply, roles do not match, inappropriate salary rates, specialised expertise not considered.
10. To what extent are workers in the sector who are not currently covered by an award likely to be employees capable of being covered by modern awards?
Explain what instrument you apply to inform payment rates for you or employees at your gallery or organisation, e.g. how you adapt existing awards and try to make them fit, use enterprise agreements, contracts, or the recommended payment rates in NAVA’s Code of Practice for the Visual Arts, Craft and Design - which is a volunteer Code setting good practice standards for the sector. It is helpful to give a sense of scale e.g. how many staff and how you apply the instruments.
11. Do the parties have a view about the potential impact of the Closing Loopholes Bill on the arts and culture sector?
The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 was introduced into parliament on 4 August 2023. It stipulates that the changes for gig economy workers or ‘employee-like workers’ are for those who work on a digital platform, which will leave out a large portion of artists and arts workers who work in the gig economy, but not on a digital platform. There is no digital platform in the visual arts for hiring workers.
This is the case despite the government recognising arts workers as the original gig workers in Revive earlier this year, noting a large cohort of practitioners are on short-term contracts based around project funding. Visual arts, craft and design organisations, including galleries and festivals, rely heavily on contractors and casual staff for short-term projects or peaks in programmed work.
The Fair Work Commission’s new powers concerning ‘employee-like forms of work’ should be inclusive of artists and arts workers who are employed as ongoing contractors for businesses. For example, many art installers will work on a project for a business on a part-time or full-time basis and may have this relationship with multiple businesses.
The Fair Work Commission should be able to set minimum standards for artists and arts workers who engage in employee-like types of work and help resolve disputes for artists and arts workers regarding unfair contract terms including:
- Rates of pay
- Disputes about whether an employee or contractor e.g. being required to switch from one to the other with no changes to rates of pay or other aspects of a contract which are usually negotiated
- Not being able to negotiate a contract
- Not having a contract
The Fair Work Commission must consider factors such as:
- Maximum hours worked per week
- Minimum hourly pay rate (based on minimum wage or award)
- Protections at work
12. Is digital platform work common within the arts and culture sector?
Not in the visual arts, craft and design sector.
If you would like to discuss your submission with NAVA, or offer examples for some of the questions for NAVA to include in its submission, please email firstname.lastname@example.org
Image: Nadia Hernández, 2023.
[ID: Graphic image with black block text on pastel orange shapes centred on a large bright orange background. The text reads, 'Recognise Art as Work' and underneath that it says 'Cheat Sheet'.]