Stayin’ Alive: Will Australia’s Arts Sector Survive the Pandemic? Max Gale

Stayin’ Alive:

Will Australia’s Arts Sector Survive the Pandemic?

Max Gale

The coronavirus pandemic has decimated Australia's arts sector. When state and federal governments-imposed restrictions on public gatherings, cultural venues across the country immediately ceased to operate. Live music venues, movie theatres, and art galleries across Australia have only recently begun to open their doors again. All of this has caused significant disruption to an industry which was already teetering on the brink due to successive funding cuts, ineffective workplace relations policy, and a highly impractical regulatory framework. Many arts organisations have been forced to downsize or otherwise go under. With tens of thousands of arts sector jobs lost and JobKeeper largely unavailable to arts workers, creative professionals have been forced to generate new income streams just to survive. Ironically, with the Australian arts sector facing an existential crisis, 2020 was the year when we needed art the most. During the lockdowns, many of us turned to the arts to escape from the realities of the world around us. As we emerge from 2020, and with a recent study finding that 98% of Australians engage in the arts, we must acknowledge the immense value of cultural institutions to the Australian way of life. If the arts are not only going to survive, but also thrive, the law must be reformed in three key areas: workplace relations, public funding, and industry regulation.

Workplace Relations Australia’s rigid workplace relations system has proven largely unfit for purpose in the modern arts sector. At the start of the pandemic, there was hope that the crisis would inspire a new era of workplace cooperation. For example, the Sydney Symphony Orchestra began consulting in good faith with their staff and their union, the Media, Entertainment and Arts Alliance (MEAA). By working cooperatively, both parties were able to reach a collective agreement under the Fair Work Act 2009 (Cth), which ensured all musicians retained their employment.

However, this outcome is a rare example of workplace cooperation during the pandemic. When employers and unions have both been unwilling to take a similarly cooperative approach, Australia’s rigid industrial relations framework has failed to achieve satisfactory outcomes. For example, Opera Australia dismissed over a quarter of their workforce without consulting their staff or the MEAA. These terminations, which continue to be litigated before the Federal Court, reflect the enormous cost of breakdowns in workplace cooperation for both parties.

Whilst the federal government has responded to this new dynamic with their proposed Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020, it is unlikely this move will result in greater workplace cooperation. As the Bill seeks to suspend the Better off Overall Test for 24 months, water down the enforceability of the National Employment Standards, and reduce opportunities for protected industrial action, it is unlikely the unions will support the changes. Moreover, most of the changes

are unlikely to excite arts employers, who seem more interested in addressing funding shortfalls, including the $250m grant pool announced last year, but is yet to be delivered.

Funding In order for our creative industries to thrive into the future, we must reform Australia’s arts funding model. Whilst many may have the perception that the arts sector receives bloated amounts of government funding, it is actually the opposite that is true. In 2017, a federal government report found that the arts contributed to 6.4% of Australia’s GDP. At the same time, arts funding only made up just over a quarter of 1% of the 2018 federal budget. This is reflective of a broader trend in federal arts funding which has declined by 19% per capita since 2007-08.

Moreover, the little funding that does exist has been criticised for being poorly targeted. This has drawn criticism from the industry, including the MEAA, which has argued that to make the arts more accessible, the federal government should consider adopting a new national arts strategy which places a greater emphasis on investment in smaller community and regional arts organisations.

These recommendations would bring the Australian model closer to the approach taken by other OECD nations including France, which provides all arts workers with a direct wage subsidy. This is under the ‘intermittents du spectacle’ system which guarantees all artists a living wage by making up shortfalls in monthly incomes through monthly payments. The French government justifies this spending on the basis that the economic and cultural value that artists create far exceeds the costs of the policy. As it has long been acknowledged by economists that arts funding provides a significant multiplier effect, initiatives like the ‘intermittents du spectacle’ program could become a key part of the policy framework for Australia’s recovery from COVID-19.

Industry Regulation The failure of the law to keep up with technology also hurts artists. For instance, with the development of music streaming services such as Spotify and Apple Music, new complexities have arisen in the enforcement of licencing laws. This was recently demonstrated in Australasian Performing Right Association Ltd v Escape Bar & Night Club Pty Ltd [2017] FCCA 2690, where Escape Bar & Nightclub was fined $83,000 for breaching the Copyright Act 1968 (Cth) by streaming music they did not have a licence to use for commercial purposes. Although the outcome of this case is promising, it has become impossible for regulators to successfully litigate the extraordinary volume of cases where a nightclub, retail store, café, or other venue unlawfully streams music.

Moreover, due to the complex nature of Australian copyright law, there is considerable confusion in the artist community regarding their licencing rights and responsibilities. For example, if an artist wants to livestream their own music, they would generally be required to register it with APRA AMCOS and ensure they hold a current licence to use their songs every time they want to stream. By updating and simplifying industry regulation and providing regulators with the necessary resources to combat copyright infringements, a valuable income source for artists can be secured.

Conclusion Throughout the pandemic, arts organisations and creative professionals have demonstrated considerable resilience in overcoming the challenges presented to them by COVID-19. Although these disruptions are beginning to subside, profound structural issues remain, threatening the ability of Australia’s arts sector to continue providing the same cultural and economic value it always has. Ultimately, if our creative industries are to survive, policymakers must reform the law, particularly in the areas of industrial relations, public funding, and industry regulation.