1Name of
Regulation
This Regulation is the Entertainment Industry Regulation
2004.
2Commencement
This Regulation commences on 1 September
2004.
Note—
This Regulation replaces the Entertainment Industry Regulation 1995
which is repealed on 1 September 2004 by section 10 (2) of the Subordinate Legislation Act
1989.
3Definition and
notes
(1)
In this Regulation:
the
Act means the Entertainment
Industry Act 1989.
(2)
Notes included in this Regulation do not form
part of this Regulation.
4Fees of entertainment industry
representatives
(1)
For the purposes of section 38 (1) of the Act,
the following percentages are prescribed:
(a)
in the case of an engagement involving live
theatre or a live musical or variety performance (being an engagement that
does not involve film, television or electronic media)—10 per cent for
any period up to 5 weeks and then 5 per cent for any period after 5
weeks,
(b)
in all other cases (including an engagement
involving film, television or electronic media)—10 per cent or, if the
entertainment industry agent and performer concerned have entered into a
complying agreement, 15 per cent.
(1A)
An agreement is a complying agreement if it is in
writing between an entertainment industry agent and performer and expressly
provides for the agent’s fee or other remuneration in respect of the
performer’s engagement to exceed the prescribed maximum percentage
otherwise applicable.
(1B)
For the purposes of section 38 (4) of the Act,
the following percentages are prescribed:
(a)
in the case of an engagement involving live
theatre or a live musical or variety performance (being an engagement that
does not involve film, television or electronic media)—10 per cent for
any period up to 5 weeks and then 5 per cent for any period after 5
weeks,
(b)
in all other cases (including an engagement
involving film, television or electronic media)—10 per
cent.
Note—
The percentages prescribed by subclauses (1) and
(1B) are maximum percentages only.
(2)
The following amounts (being amounts payable to
performers) are to be excluded when calculating the percentage of fees or
other remuneration that an entertainment industry agent or manager may demand
or receive for or in respect of the engagement of a performer:
(a)
travelling and meal
allowances,
(b)
holiday pay,
(c)
any long service leave and superannuation
payments,
(d)
any overtime or penalty payments that are paid on
an irregular basis, other than payments resulting from negotiations undertaken
by the agent or manager on the performer’s behalf with the relevant
entertainment industry employer or venue consultant,
(e)
any award or minimum payments in respect of
rehearsals.
(3)
An entertainment industry agent or manager must
not demand or receive a fee or other form of remuneration from a performer
for:
(a)
the performer joining or being auditioned to join
any agency of the agent or manager, or
(b)
the retention or on-going representation of the
performer by the agent or manager.
Maximum penalty: 10 penalty
units.
cl 4: Am 2011 (91),
Sch 1 [1]–[3].
5Financial statements for money
received for performers
(1)
As soon as practicable after receiving money on
behalf of a performer, an entertainment industry agent or manager must give
appropriate financial statements to:
(a)
the performer, and
(b)
any entertainment industry representative who has
represented the performer, or carried out activities on behalf of the
performer, in connection with the engagement for which the money has been
received, and
(c)
the entertainment industry employer (or other
person) by whom or on whose behalf the money has been
paid.
(2)
The appropriate financial statements for the
purposes of subclause (1) (a) and (b) are:
(a)
a statement of the amount of money received by
the agent or manager on behalf of the performer, and
(b)
a statement of the amount of money paid to the
performer for the engagement.
(3)
The appropriate financial statement for the
purposes of subclause (1) (c) is a statement of the amount of money received
by the agent or manager on behalf of the performer.
(4)
The following particulars are to be included in
any financial statement provided by an entertainment industry agent or manager
under this clause to a performer:
(a)
the date and other details of the performance to
which the statement relates,
(b)
the licence number of the agent or
manager,
(c)
any business name under which the agent or
manager carries on business as an agent or manager,
(d)
if the agent or manager is a corporation under
the Corporations Act 2001 of the
Commonwealth, the corporation’s ACN within the meaning of that
Act,
(e)
if the agent or manager has an ABN for his or her
business as an agent or manager, the ABN,
(f)
in the case of a statement of the amount of money
paid to the performer for an engagement:
(i)
the method of payment, and
(ii)
any deduction from the money received by the
agent or manager that has been made for the agent or manager’s fee or
other remuneration, and
(iii)
any deductions from the money received by the
agent or manager that have been made for expenses incurred by the performer in
connection with the performance (such as travel expenses and equipment hire)
and paid for by the agent or manager.
(5)
In this clause, ABN means an Australian Business
Number registered under the A New Tax System (Australian Business
Number) Act 1999 of the
Commonwealth.
cl 5: Am 2011 (91),
Sch 1 [4].
5ARecords to be kept by
entertainment industry agents and managers
(1)
An entertainment industry agent or manager must
keep the following records at the agent’s or manager’s principal
place of business for at least 5 years after the record is made:
(a)
each accounting record the agent or manager is
required to keep under section 39 of the Act in respect of money received on
behalf of a performer,
(b)
a copy of each financial statement provided by
the agent or manager under clause 5, and
(c)
a copy of each written agreement the agent or
manager has entered into with a performer or with another person on behalf of
the performer.
(2)
An entertainment industry agent or manager who
holds any record referred to in subclause (1) (b) or (c) in relation to a
performer must, within 3 business days of receiving a request by or on behalf
of the performer for a copy of the record:
(a)
make the copy available for collection at the
agent’s or manager’s principal place of business if requested to
do so, or
(b)
send the copy (whether by post or otherwise) to
the performer in any other case.
(3)
A person who contravenes this clause is guilty of
an offence.
Maximum penalty: 10 penalty
units.
Note—
There is a maximum penalty of 50 penalty units
for failing to keep the accounting records referred to in subclause (1) (a),
in accordance with section 39 of the Act and that
subclause.
cll 5A: Ins 2011
(91), Sch 1 [5].
5BRecords to be kept by
entertainment industry employers and venue consultants
(1)
An entertainment industry employer or venue
consultant must keep accounting records in respect of money that the employer
or consultant pays to an entertainment industry representative for the
services of a performer.
(2)
Without limiting subclause (1), the accounting
records must disclose the basis on which the payments are made in addition to
any other particulars of the payments.
(3)
The employer or consultant must keep each such
accounting record at the employer’s or consultant’s principal
place of business for at least 5 years after it is made.
(4)
A person who contravenes this clause is guilty of
an offence.
Maximum penalty: 10 penalty
units.
cll 5B: Ins 2011
(91), Sch 1 [5].
6Delegation: section
53
The class of persons that consists of the
following persons is prescribed for the purposes of section 53 (3) (b) of the
Act (that is, the class of persons to whom the Minister may delegate
functions):
(a)
the Director-General, Department of
Commerce,
(b)
the Executive Director, Office of Industrial
Relations, Department of Commerce,
(c)
the Director, Compliance Services, Industrial
Relations Service Delivery, Office of Industrial Relations, Department of
Commerce.
cl 6: Am 2008 (595),
cl 2.
7Savings
Any act, matter or thing that, immediately before
the repeal of the Entertainment Industry Regulation
1995, had effect under that Regulation continues to have
effect under this Regulation.