Breaking news at the time of writing from across the channel brings a dire message to the sector from orchestral colleagues in the United Kingdom: the BBC announced a far-reaching plan to slash the salaries of its fully employed orchestral musicians by 20% and will cut the distinguished choral group, the BBC Singers entirely.
In a reaction to swift and sharp criticism of the planned cutbacks, the BBC’s Head of Orchestras and Choirs commented, “[we] want to be able to work with more musicians, and broadcast from more venues, in all parts of the country. That will mean more opportunities for freelance musicians in our English orchestras, and fewer salaried posts. It’s a change that keeps the BBC in line with the industry standard, freelance and salaried musicians working together, but it also realigns us with the founding spirit of the BBC ensembles as flexible performing groups.”
Adding insult to injury, the BBC musicians learned of the cuts and redundancy plans through social media; no BBC initiated consultation took place before the announcement hit the headlines. The insinuation of an industry standard in which the employed suffer the loss of one-fifth of their salaries in order to make way for freelancers in the name of flexibility is preposterous. Formerly fully employed BBC musicians will be forced to replenish lost income by joining a sizeable cadre of freelancers that will result in an even larger pool of vulnerable freelancers. In the current global orchestral marketplace, shrinking opportunities resulting from financial crises and a preponderance of management decisions that forefront efficiency to the detriment of honest employment practices has diminished occupational choices for orchestral musicians in extremis. In contrast, a closer look at positive news from the Netherlands is certainly warranted in light of the alarming reports from abroad.
Dutch Competition Authority Guidelines in line with European Commission Guidelines
In February 2023, the Dutch Competition Authority (Autoriteit Consument & Markt, further ACM) updated its Guidelines on the application of Union competition law to collective agreements regarding the working conditions of solo self-employed persons, originally published in 2017. Adjusting ACM Guidelines to follow European Commission Guidelines,the ACM emphasized that self-employed workers are permitted to negotiate pay scales and bargain collectively in an attempt to safeguard their livelihoods without violating competition rules.
As a reminder to FIM confrères, EU Commission DG Competition representative Jean-François Guillardeau’s cogent presentation at the FIM online conference (13 December 2022, available online) offers an excellent overview of the Commission’s Guidelines along with an explanation of prior restrictions that fell within the ambit of Art. 101 of the Treaty on the Functioning of the EU (TFEU). For orchestral freelancers, the most salient points are the unconditional exemption to the constraints of competition law along with the document’s strong anti-enforcement stance with regard to Art. 101 TFEU.
The example of self-employed orchestral musicians as side-by-side workers is given pride of place under Example 4 in the Commission Guidelines.With a grain of optimism, the ACM Guidelines read in concert with the Commission’s Guidelines provide greater legal certainty post-FNV Kiem.The categorization of side-by-side musicians is thereby etched in ‘black letter law,’no longer a matter of relegated to judicial determination on a case-by-case basis.
Be careful what you wish for? A plea for corrective action
While Dutch cultural unions have worked long and hard to move forward towards finalizing collective bargaining agreements (CAO’s, in Dutch) between Dutch orchestral employers and freelancers,a closer examination of a pair of clauses in the recent agreement invites gentle criticism. For example, under Art. 9.2 (a), the Dutch CAO reiterates the Guidelines’ (both Commission and ACM) central tenet of equal pay for side-by-side workers and regular employees. Art. 9.2 Classification of Salary Scales reads in relevant part:
- Upon commencing employment for the first time, a freelancer who is not regularly employed by one of the orchestras affiliated to this collective agreement will be entitled to receive the same salary received by regularly employed orchestra members, the salary that corresponds to the position he/she holds within the orchestra.
- Years of relevant experience already acquired will be counted in the salary determination. Theyears of experience start at the beginning of the career as a freelance player with one of the orchestras to which this CAO applies. Equivalent foreign professional experience also counts in the determination.
Within the Dutch orchestral salary system, a musician’s initial salary is determined by several factors: section vs. principal pay; years of prior professional experience; and extra salary compensation for doubling instruments. So far, so good. However, Art. 9.2(b) has caused a modicum of consternation on the part of Dutch-based freelance musicians. Its admirable momentum in the direction of equal pay on all levels could inadvertently engender an undesirable discriminatory component.
More experienced freelancers, more often than not, older players are more costly to hire than younger, less experienced players. As orchestras are ever-cautious spenders following the adverse impact of the COVID-19 pandemic on the sector, an extra incentive to cut costs and hire ‘cheaper’ freelancers could directly impact those who cost more. Comments by Dutch orchestra personnel managers corroborate the aforementioned observation. The general reflection on their part is that although quality is and should be the most important criterion for hiring a substitute player, the temptation to hire excellent starters, freelancers who have graduated from orchestral academies and/or recent top conservatory graduates as opposed to tried-and-true older freelancers is great.
Another example in need of consideration is found in the CAO’s Article 4 formulated to provide aid and abetment in the audition process. In relevant part:
A freelancer who has worked 50 days or more on a seasonal basis with an orchestra shall be entitled to skip the preliminary round of an audition and be invited immediately to the next round of an audition for permanent orchestral employment, under the condition that the audition takes place within one year after the freelance substitute player has performed in the same position within the orchestra.
Reports from the front provide evidence that without any form of enforcement, freelancers are not at liberty to assert this collectively bargained right. Orchestras often ignore the clause and ever-vulnerable freelancers do not feel secure to make a claim for audition advancement. To quote a freelancer (anonymity assured) who did not feel free to assert his/her right: “quite simply, had I stood up for my right to take an audition in the first round rather than competing against a much larger group of players in the general preliminary round, I might never have been called back to freelance in the orchestra.” Adding an additional layer of uncertainty that hearkens back to the Pintus case,in which a violinist who had performed as both a first and second violinist in the Concertgebouw orchestra attempted to gain permanent employment, leads to another Article 4 question.
Could a freelance violinist who has performed more than 50 days in both violin sections within an orchestra claim the right to audition for a violin position? Would service as a first violinist ‘count’ toward such an exception in the case of a second violin audition? Or less likely, vice-versa? To continue to level the playing field and mitigate the disproportionate imbalances in bargaining power on the part of ever-vulnerable freelance orchestral musicians, corrective reassessment of the recent collective bargaining instrument on behalf of Dutch musicians is warranted.