Know your rights: contracts and COVID-19

MEAA has received queries from members being asked to sign new documents that relate to COVID-19 as a condition of employment on screen productions (mainly TV commercials). Some of these contain provisions that are unreasonable and, in some instances, unlawful.

What’s OK

Any declaration should be limited to an agreement that you will work within the safety guidelines, and in providing a health declaration regarding any potential exposure to, or symptoms of, COVID-19 – such as a declaration that you are not suffering flu symptoms or have not traveled overseas in the last 14 days.

These declarations should not be in the form of a deed or waiver – which waives an employee’s rights to sue for damages – and should never require the employee to indemnify the employer for any breaches of the terms of the agreement.

What’s not OK

Any waiver that asks an employee to indemnify their employer for any damages that may arise from COVID should not be signed. An indemnity means the employee can effectively be sued in place of the employer. This strikes to the heart of the employee and employer relationship and the requirement for the employer to provide a safe workplace. In many cases it is precluded by Workers Compensation and Occupational Health and Safety legislation, making it unenforceable.

Any deed seeking the employee’s agreement not to interfere, stop work or speak out publicly should there be breaches of safety regulations should not be signed. These terms impinge on the employees’ rights, and try to weaken the employer’s obligation to provide a safe workplace, something that is required by law.

If a member fails to sign one of these unreasonable documents, and then is not employed on a production as a result, this may amount to an unlawful adverse action and breach of the Fair Work Act.

What you should do

As always, negotiate in writing (eg. email or text) or confirm any verbal negotiations by following up in writing so you have a record. Refuse to sign any document or strike out and initial any provision that you do not agree with when you sign your contract. If the producer insists that the provision be included as a condition of employment, confirm this in writing with them and seek advice from your local MEAA organiser or MEAA Member Central.

Further reading: Screen production industry COVID-safe guidelines and resources