The Purity of the Musical Actor’s Labor

▲ Kim Hyun-ho Certified Labor Attorney (Samhyun Certified Labor Attorney)

In late autumn of 2019, an article titled ‘Open the door of the Ministry of Labor to artists’ written by the author was published in . About two years later, the Ministry of Employment and Labor, which did not recognize the workmanship of artists, especially musical actors and staff, was opened. However, different conclusions are drawn as to whether or not workers are workers.

The number of cases handled by the Ministry of Labor over the past two years cannot be evaluated unilaterally. Judging from the results of labor cases handled through the Artist Welfare Foundation, which is personally involved, the workmanship of the staff is being recognized unless there are special circumstances. However, in the case of musical actors, if there is an active recognition (such as a confession) by the production company, the worker’s character is recognized, but recently, it tends to be denied collectively.

Why are such different conclusions drawn in the judgment of the workers’ labor of the musical staff and actors? The Ministry of Labor said on the surface that the judgment was made by citing court standards. However, this is because the economic activities of salaried workers with a clear leadership relationship are still unable to escape from the modern concept of labor as labor. Even though the Supreme Court changed the sign of its judgment from direct command and supervision to considerable command and supervision, the front-line branch office of the Ministry of Labor, which denied the musical ensemble actor’s workmanship, did not understand this meaning at all.

On the other hand, there is also the mistake of not properly checking the reality of what kind of collaboration the work is produced through behind the scenes while only looking at the splendor of the musical. In fact, a labor district office in Seoul closed the case of ensemble actors’ complaints about unpaid wages, and as to the reason for the denial of the Labor Ministry, “○○○ is an actor in the musical □□□□, and as an actress, she pays the performance fee set by individual artistry and public popularity. In the sense that performance activities are a production activity that creates artistic value, they cannot be regarded as labor in the pure sense of the word, so the applicant cannot be regarded as a worker under the Labor Standards Act who provides work for the purpose of wages in a subordinate relationship with the employer.” have judged that

The musical ensemble actor in the case was paid 120,000 won per episode, and the amount he received for performing for a month was about 3 million won. Even if one participates in a musical that runs more than 120 times a year, the income from the performance is around 20 million won. It was not easy to make a living only from the performance income, since the practice period, which lasted two to three months, received almost no pay. Did he say that it was not work in the pure sense of the word because he felt sorry for this reality? The Labor District Office was informed that the performance fee is set based on individual artistry and public popularity as the basis for judging the unfairness of workers’ character. Did you decide that ensemble actors who receive low performance fees do not work to receive performance fees, but rather participate in performances in order to grow into leading actors who receive large amounts of money after becoming more popular and publicly known in the future? Of course it’s just my imagination. What exactly is labor in the true sense of the word? After the completion of the complaint, the case was converted into a case of revocation of non-acknowledgment such as bankruptcy, and with legal support from the Public Interest Human Rights Law Foundation, the first hearing is currently awaiting at the Seoul Administrative Court.

On the other hand, the need for protection under individual labor laws must also be considered when judging worker characteristics. Although the performance fee is not paid due to unavoidable circumstances, it is often the case that several production companies are set up and performances are held by another corporation without knowingly paying the actors’ wages. Recently, as the production of performances increases in line with With Corona, the behavior of some habitual payment producers is being revealed again. Since the production company that laundered the corporation is not held criminally responsible for the arrears in wages, even if the actors who have paid the appearance fee receive a judgment through a lawsuit, there is no way for them to be compulsorily executed on the paper corporation’s tin can account.

Of course, I’m not a musical expert. I can’t even mention the structural problems of the musical industry and the difficulties of the workers in a few lines. However, if a different standard is applied in judging workers’ rights because those who are hidden from the splendor of the musical are actors, wouldn’t it be a violation of equality before the law guaranteed by the Constitution?

The conclusion I have come to is this: Musical actors, especially ensemble actors, do not receive direct instructions from the production company representative, but receive direct instructions from the director or choreographer. Because these instructions are not direct instructions by the user, it cannot be considered that there is no command and supervision. In the case of commuting time, the practice schedule must be observed. It is not only contractually impossible to make overlapping appearances other than the lead actors who become double castings, but it is also not possible in reality. The performance log written by the stage director can be understood as a work order in the general sense, and the performance fee is not determined according to the popularity of the public, but is determined according to the performance period and appearance experience of the work. In addition, in the case of the application of employment rules, it cannot be said that there are no rules for observing working conditions in that the customary on-site manual plays a role. Considering these factors, it must be said that the production company is receiving considerable direction and supervision from the user. Therefore, the disposition of the Ministry of Labor is unlawful as the complainant XXX is an employee under the Labor Standards Act.

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