Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance) | Oireachtas source

I am assuming my amendment was ruled out of order on the basis it goes beyond the scope of the Bill or something to that effect. I understand why, technically, this might have been ruled out of order. To my mind, however, it very much is, or should be, part of the Act this Bill is amending to make the grants and loans the Irish Film Board gives out for film productions far more strictly conditional on the film production companies that receive those grants and loans providing quality employment and training. They are not legally required to under the film board Act but, in general, it is the position of the Government, more via section 481, that public funding to the film industry should be conditional on the provision of quality employment and training.

In the case of section 481, public funding is legally conditional on the provision of quality employment and training. I know it is not the case with funding that is coming via the Irish Film Board. That is not written into law, as such, but I am saying it should be.

Not only should it be written into law, but we need to make sure it happens. In my opinion, and in the opinion of many who work in the film industry, that industry test, as it is known, is not being met. I am speaking slightly off the top of my head, so the Minister can come back to me on this. My understanding is that the EU directives governing state aid to the audiovisual industry say that the state aid is conditional on the meeting of the industry test and the culture test. I am all for giving more aid and support to the arts, film and culture, but I am also very much for the conditions of quality employment and training, and the building up of a real industry. The Minister can correct me if I am wrong, but I think the EU directive refers to the need to create companies of scale. What is meant by creating an industry is that we create companies of scale and, in other words, we build up a permanent pool of skills to actually make an industry. That industry would have real jobs and, therefore, the people who work in the industry would have some level of security about employment, so it is not just a fly-by-night industry where nobody has any rights or entitlements, or security or certainty about their ability to work in that industry or have an income over the long term.

To my mind, the grants and loans are very significant. What this Bill is doing is raising the ceiling from €500 million, which we have nearly reached, to €800 million. That is a lot of money to be giving out. I think it is €490 million at present. If we add section 481, which is the other arm of the State giving money to the same film productions, probably over the same period, we are probably talking about €4 billion. It is big money, and there are some other streams of money as well.

As I said, I am all for that money and even more going in. However, I do not believe we have the conditions of quality employment and training, particularly in relation to the fixed-term workers legislation, where people have been working on successive productions over the years. Film crew of all sorts will work on successive productions, but for each production, a DAC, or designated activity company, is set up. The people who set up that subsidiary, and who receive the money from the Government, are from the producer company, such as Metropolitan, Element or one of those. It is a standing company, but it sets up different DACs for each film production. When the people who work on those multiple productions go in and assert their employment rights, they will say that they worked on the last production, the one before that and the one before that, and, therefore, they are entitled to work on the next one. However, if, for some reason, the company decides that it does not want them back because maybe they have been asking for their rights, giving out about the fact they do not get holiday entitlements or are involved in trade union activity, or whatever, it can decide that it does not want to employ them on the next production.

That has happened to many workers, who then take a case. They go to the WRC and say that the company, which gets money from the State, from the Irish Film Board and under section 481, had set up a DAC and employed them on multiple productions and, therefore, they are asserting their rights under law to, for example, a contract of indefinite duration. The company that gets the money from the Government for quality employment and training will say that they are not its employees, even though it knows them, and even though it set up all of the subsidiaries, which are wholly-owned subsidiaries of the company that gets the money for quality employment and training. It hides behind that DAC and says they are not its employees, even though they may have worked for the company for ten, 12 or 15 years. The company goes in and signs sworn affidavits to that effect.

At the WRC recently, a case was taken by stagehands, who won by establishing that the company cannot hide behind the DAC. The film producer company then went to the Labour Court to try to overturn that decision, and it succeeded. The stagehands then went to the High Court, which very recently made a ruling that said what the Labour Court had decided was ridiculous because it simply took the producer company’s word that these people were not its employees, and it never looked further into it, when, clearly, the producer company was the company that got the money from the State. Reference was made in the High Court ruling to the moneys received from the State as proof that the producer company that was denying the employment relationship is the recipient of an incentive from the State.

The State is involved here. I do not understand why the State would not clarify this issue. This has been going on for years, and multiple cases have been taken. The State could just step in and say that this is what it means when it gives the money, and that it is going to clarify that, in law and in legislation, this is what it means by quality employment and training. It means that the company the State gives the money to cannot hide behind a pop-up shop that it sets up when it is a wholly-owned subsidiary of the entity that the State gives the money to. That is what I am asking. While the amendment has been ruled out of order, I would still ask the Minister to seriously consider it, although not for this Bill, because that is not going to happen.

By the same token, for the performers, writers, directors and others, their gripe also revolves around the DAC. If they want to work on a film and the producer has set up a DAC to do it, they are handed a contract to work on that film, and that contract states that they will sign away their right to future royalties to the DAC. In the past, actors, writers and performers would have received residuals - royalty payments - if the particular production turned out to be successful and did really well. However, the producer companies do not want to give the intellectual property rights to a share of future royalties. Instead, they want to say that they are giving the equitable remuneration that is required upfront. For the Minister to understand this, there is no way the producer company can say it is equitable remuneration upfront. How could it? It does not know how the film is going to do. It does not know if it is going to be played again and again or be a big success, and, therefore, be put out all over the world, on Netflix and the streamers, and be played in a lot of cinemas. How successful it is will determine how much money the film makes. However, if the actors are told they have to agree upfront to sign away their rights, and the company is going to pay them so much now, they lose out on all that downstream stuff.

Again, and this is a technical point, the rights for that film are signed over to the DAC. Where do those rights go after the DAC is wound up?

Who do they go to? As far as I know, nobody really knows. I bet the producer company the Government gives the money to knows, and its beneficiary.

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