THE (changing) FUTURE OF THE DANCER

Panel discussion on the occasion of the thirtieth anniversary of Omscholing Dansers Nederland

Thursday 15 December 2017, Korzo Theater, The Hague

Report by: Annette Embrechts

One of the first mountains that a dancer needs to climb is money. Yes, dancers need an income,
just like anybody else in the world and one too many times during my career I had the feeling that
some people out there forgot about this little but essential detail.

Ex-dancer Davide Cocchiara (Dansgroep Krisztina De Chtel, WArd/ward-Ann Van den Broek,
David Middendorp and Jasper van Luijk) opened the afternoon with an impassioned speech about
making his dancing dream come true and the process he went through in order to admit that his
dancing career was nearing its end. He emphasised how valuable his dancers competencies are in
his retraining as a copywriter: dedication, perseverance, discipline and sense of purpose. Partly
thanks to the Omscholingsregeling, Davide is studying at the Miami Add School in Berlin.
He did credit to his copywriting studies by following the writers rule stay simple, stay clear in
using a single gesture to call on all dancers to fight for their right to a decent wage after working:
Stand Up.
The reactions showed that individually standing up for your remuneration is not always that
simple. As a dancer, you often feel vulnerable and in a position of dependency. Moreover, all you
want to do is dance you know how little work there is and how narrow the financial margins
are for dance productions. But collectively, dancers are stronger. This was also confirmed by Paul
Bronkhorst, director of Omscholing Dansers Nederland a scheme that owes its existence to
collectivity and solidarity.
Panel member Peter van den Bunder, manager of self-employed people with the Dutch artists
union, the Kunstenbond, urgently appealed to everyone to collectively reflect on and anticipate
the changes in the labour laws for freelance dancers in the coming months.

From VAR to Temporary Contracts or Model Contracts

The practice in the diverse dance world of the Netherlands appears to involve so many dancers
and so many types of contract. Besides dancers on a long-term contract with one of the larger
companies who are covered by the new Drama & Dance collective labour agreement (CAO), there
are countless freelance dancers who are contracted on a project basis in numerous different
ways. The international dimension of the dance world adds even more complexity, as does co-
authorship (in cases where choreographers dance in their own production, create their own sound
design or work in a collective, etc.). Moreover, project-based work is becoming even more
frequent nowadays and the demand for freelancers is gradually growing.
Project-based dance productions owe their existence to a maze of temporary contracts and
inventive constructions. This makes it difficult to generalise about the future of freelance dancers
under the changing labour laws. Yet it really is possible to make some sort of concrete report, as
was shown in the panel discussion organised by the Omscholingsregeling on the occasion of its
anniversary.

What does the DBA Act involve?

The concept of freelance has not actually existed for some time now. Until recently, dancers
were offered temporary contracts or they operated as a self-employed individual (zzp-er) with a
Declaration of Independent Contractor Status (VAR). The four types of VAR were supposed to
have been replaced by model contracts in the spring of 2016, under the Assessment of
Employment Relationships (Deregulation) Act (DBA).
The announcement of the introduction of this new Act caused quite a stir among zzp-ers and
clients in the Netherlands. In the cultural and performing arts sector, in particular, the DBA Act
has generated a lot of uncertainty about the way forward.
The DBA Act is intended to prevent fraudulent self-employment and has consequences for the tax
authorities assessment of the relationship between employer and employee. Whereas previously
only the zzp-er was charged outstanding tax in the case of fraudulent self-employment, under the
DBA Act both parties (employer and employee) are responsible and liable for avoiding fraudulent
self-employment.
Under this new DBA Act, in the future people will use model contracts that are approved by the
tax authorities. The new legislation requires clients and zzp-ers to record their agreements in
model contracts that are submitted to the tax authorities for approval. These model contracts
must meet certain conditions and are valid for five years.

The temporary freeze on the DBA Act

However, some of the terms in these model contracts seem to be built on legal quicksand. It is
unclear exactly what is meant by certain terms pertaining to labour law, such as gezag (power of
authority) and verplichting tot persoonlijke arbeid (obligation to perform services in person).
Partly due to this, the introduction of the DBA Act has therefore been postponed until at least
January 2018. In practice, the DBA Act appears to be untenable. So there is now a transitional
period (until January 2018), in which the tax authorities will not impose fines or charge
outstanding tax in the case of unintentional mistakes being made in the model contracts. The tax
authorities website includes the following examples of provisions for model contracts, which are
supposed to indicate that there is not a case of employment:

The contractor carries out the work stated in the contract completely independently.
The contractor is free to find a replacement, but will remain responsible for the quality of
the work and for meeting agreements.
The contractor will only be remunerated for the costs actually incurred.
The contractor and the client do not intend to enter into a contract of employment in
accordance with the law, and wish only to enter into a contract on the basis of the
contracting agreement in accordance with the Netherlands Civil Code.
The contractor will provide his own tools, equipment and materials, and pay for them
himself.
In the agreement, the client and the contractor have agreed when the work is to be
completed and delivered.
 The contractor is the holder of the current and future intellectual property rights and
related rights ensuing from his work. The contractor gives the client the right to use the
results of his work once for the purpose for which he has carried out the work.

No approved model contracts for the creative sector

It should be apparent that the conditions listed above are hardly applicable to the creative sector.
The tax authorities have already indicated in advance that they will not approve model contracts
in the creative sector concluded between client and performing artist, because labour law
conditions such as power relations, intellectual property rights, free to determine working
hours and free to find a replacement are not applicable to the relationship of employer to
employee in the creative process.
Should the DBA Act be introduced anyway, after this transitional period, then there will not be
any approved model contracts for the creative sector. This means extra uncertainty for the
financial future of performing artists like dancers, as the government is not making any financial
resources available for the creative sector in order to be able to conclude temporary contracts of
employment in accordance with labour law guidelines, including payment of premiums and taxes,
etc. Furthermore, the amount of project-based work is on the increase, so there is more demand
for contracts for zzp-ers.
The complaint voiced most often during the panel discussion was the distressing lack of sufficient
financial resources for concluding legally correct contracts with zzp-ers, for dancing on a project
basis in productions by independently working choreographers.
However, as long as there is no prospect of more financial resources, during this transitional
period dancers must familiarise themselves well with the labour law changes that affect the
creative sector. Employers such as companies and production centres are also struggling with the
uncertainty about the financial future and trying to eliminate as many risks as possible. The lower
limit of the guarantee of good employership has already been reached. In fact, the arts sector and
certainly the dance sector seem to be dropping through this limit.
There are insufficient financial resources (and insufficient paid work opportunities) to offer
dancers a contract of employment. And soon, due to model contracts for dancers not being
approved, it will be difficult to hire dancers as zzp-ers.

What is involved in this transitional period?

The website of the Dutch tax authorities states the following about the postponement of the DBA
Act: The cabinet will investigate whether the labour laws should be re-evaluated in order to
better correspond to current work practice. The Ministry of Social Affairs and Employment, the
Ministry of Security and Justice and the Ministry of Finance are therefore investigating how the
criteria authority and free replacement can be defined more concretely or differently.
Time for reflection has therefore been created, but the uncertainty remains.
Peter van den Bunder emphasises that this transitional period must be used to respond proactively
to the issues by coming up with a collective proposal. The Kunstenbond is negotiating with parties
on this issue.
Dancers themselves often feel like victims of the DBA Act. At the bottom line, they are earning
less and are no longer eligible for the self-employment allowance. Apparently, the benefits of a
contract of employment (accrual of WW, payments to the Omscholingsregeling and disability
insurance during work) no longer compensate for an existence as a zzp-er, with a favourable self-
employment allowance.
The end of the VAR declaration

Up to May 2016, it was possible to hire dancers as zzp-ers if they could produce a Declaration of
Independent Contractor Status (VAR). Artistic considerations often prompt the choice to work
with specific dancers per project. They are hired as a zzp-er or are offered a temporary contract.
In practice, this often means that zzp dancers are covered by the regulations for small businesses,
and with the help of the self-employment allowance can earn just enough to provide them with a
basic annual income, spread out over the year. And if dancers can get enough work, they can
often string together enough temporary contracts to be able to earn a basic annual income, with
the help of a safety net of social security regulations.
The possibilities for dancers to negotiate an hourly rate, for example, or to request 4% extra for
the Omscholingsregeling, are extremely limited. On the one hand, this is to do with supply and
demand (there is not enough work for too many dancers), but on the other it concerns the
dancers lack of emancipation, as Davide already remarked.
Ingetje Wielenga, ex-dancer and labour lawyer, wrote her thesis on the DBA Act. She studied
Dutch law at Leiden University and obtained her Master of Labour Law degree at Erasmus
University Rotterdam. During the panel discussion, Wielenga stressed that the normal practice of
having many separate temporary contracts and invoicing on the basis of VAR declarations is a
legal jungle. It is clear to her why the government and the tax authorities want to get rid of it.
Even though it is artistic considerations that prompt the hiring of many dancers on a project basis,
there must be clarity in the labour laws as to how to work from one commission to another in a
sector that often has insufficient resources for a fair relationship between client and contractor.
What possibilities and alternatives are there for remunerating dancers?
As the general manager of Dansateliers Rotterdam (since 2011), Johan Cuperus has to deal on a
daily basis with changes to the labour market for dancers. He says that he has to use all his
creativity in searching for suitable temporary contracts and other legal constructions. The
necessity of co-producing sometimes raises extra obstacles as well, especially if the co-production
is cross-border, as several subsidy schemes are not international and do not always allow for the
possibility of cooperation. An additional complexity in cross-border cooperations is that labour
law requirements can differ from country to country.

What is Fair Practice and how does the dance sector enforce it?

Performer and designer Eva Villanueva, artistic coordinator of platform BAU Amsterdam, stands
up through BAU for independent dance makers, dancers and performers in Amsterdam. The
artists platform BAU supports independent makers and provides them with rehearsal space.
According to Villanueva, cooperation, cross-pollination and exchange are necessary for
preventing an exodus of independent dance talent from Amsterdam and the Netherlands.
In a widely distributed incendiary letter, she already referred to the weak labour market and
income position of dancers and performers (and culture workers in general). She quoted from the
SER report of January 2016, which can be summarised as those not at the top cannot make ends
meet in the Dutch art world. Eva proposed giving independent makers a voice in new, long-term
policy yet to be formed, through better facilities and representation.
For the time being, it seems that just as much or even more is being produced with less money, so
that terms of employment are continually worsening, whereas it is actually the creativity in the
arts sector that should be used in devising long-term alternatives.
A group of artists from Belgium, for example, has put forward a proposal for a Fair Practice Label,
which entails fair compensation and terms of employment. It is supposed to cover four domains:
solidarity (equal pay, reorganisation, and minimum and maximum pay), sustainability (both at
organisational and ecological level), diversity and transparency (involving artists in formulating
policy and openness about funding, etc.).

A Fair Practice Label is a way for artists and organisations to protect themselves against inhuman
working conditions and being undermined, and a way to promote fair and sustainable practice. In
the Netherlands, several meetings have been organised in recent years about this idea, and
Minister Jet Bussemaker has announced that she is open to such an idea.
The question is what will come of this idea after the elections in March 2017. In the field of
sustainability and diversity, the dance world appears to score well. But in the field of equal pay, it
still has a lot of catching up to do. And it is also unclear to what extent the solidarity idea behind
Fair Practice for the dance sector also means that there will still be sufficient resources for
Omscholing Dansers Nederland.

In any case, it remains important for dancers, choreographers, companies and production centres
to join in the dialogue about workable labour relations in the creative sector.

And finally an example of an alternative model for cooperation: the Swedish model. In Sweden,
freelance dancers are hired through an umbrella organisation, which receives subsidy from the
government:
http://dansalliansen.se/english/

Dansalliansen (Dance Alliance) was established on October 1, 2006 as an employer of freelance dancers in Sweden. The
alliance is jointly owned by Teaterfrbundet (Swedish Union for Theatre, Artists and Media), Svensk Scenkonst (Swedish
Performing Arts Association), DansCentrum (Dance Center) and Trygghetsrdet TRS (The Employment Security Council
TRS). Funded by governmental grants, Dansalliansen was modelled after the Swedish TeaterAlliansen (Theater Alliance).
The establishment of a dance alliance is a labour-market and cultural policy reform that provides freelance dancers
active in the publicly funded dance sector with social insurance and financial security as employees of the alliance.
Employment at the alliance provides a balance between permanent employment and fixed-term employment.
Dansalliansens mission is to strengthen the freelance dancers position, thereby strengthening the independent dance
sector.
Dansalliansens main tasks are to:
offer basic social insurance and financial security to a large number of freelance dancers,
provide artist-promotion services and foster work opportunities,
manage competence development,
provide career path support and advice, and
function as a general support for development in the independent dance sector.
Dancers employed by Dansalliansen continue to work as freelance dancers. During periods of employment at other
employers dancers take a leave of absence from Dansalliansen and at the end of the employment period they are
reinstated as employees of the alliance.
Dansalliansen does not carry out any production work nor does it function as an employment agency. The alliance
provides artist-promotion services and competence development for dancers under its employ. Furthermore,
Dansalliansen arranges workshops, master classes, seminars, etc. Several of these endeavours are also open to
freelance dancers who are not employed by the alliance.
Since the start in 2006, six rounds of employment have been carried out and at year-end 2015 a total of 68 dancers
were employed by the alliance. Dansalliansens long-term ambition is to incorporate a large proportion of Swedens
freelance dancers.