Practical advice
Employers who currently roll up holiday pay will need to change their working practices. Workers will be able to bring claims now on the basis of the ECJ decision.
There is some good news: if employers have been paying holiday pay on a rolled-up basis, the ECJ has said that they will be able to set off that holiday pay against any that may be due to the worker. This is, though, only the case if the rolled-up holiday pay element was paid ,transparently and comprehensibly. It will be up to employers to show that this is the case. Employers who have followed previous best practice guidance on this, for example by showing the holiday pay element separately in contracts and preferably also on payslips, should be able to do this.
The ECJ stated that the European Member States are required to take appropriate measures to ensure that rolling up practices do not continue and so we can expect some amendments to the Regulationsin the UK.
Bear in mind that, under the law as it currently stands, claims for unpaid holiday pay must generally be brought within three months of the end of the worker's contract or the end of the relevant holiday year. This, together with the ability to off set payments already made, is likely to limit the impact of this judgment for employers. However, the House of Lords is due to consider this point in October this year in the case of Ainsworth v HM Revenue & Customs. They will also be deciding whether workers are entitled to holiday pay during extended periods of sickness and other absence.

To put this in a film and television context, production contracts must strictly provide for holiday pay to be paid on a withheld basis (i.e. when the holiday entitlement is actually taken) and not on a rolled up basis (i.e. the element of holiday pay paid with the regular pay). For the general impact of this on old, current and new productions, please see below, but if you have any specific queries or concerns, please contact us for advice as we cannot give definitive advice here.

1. For current productions:
Production contracts that provide for 'rolled up' holiday pay are technically in breach of this ruling, but if the holiday pay element is paid transparently and comprehensively- (e.g. if it is clearly set out in the contract), in the event of any claims, producers should be able to set off the holiday pay element paid against any claim. Therefore, you may decide to retain any existing contracts of this type for current productions.

2. For old productions:
The situation is as set out above however, additionally, under the law as it currently stands, claims for unpaid holiday pay must generally be brought within 3 months of the end of the worker's contract or the end of the relevant holiday year.

3. For new productions going forward:
Producers should pay holiday pay on a withholding basis. We will be making some changes to our precedents so please let us know if you need to issue any production contracts, and please do not use any old precedents that we may have previously sent to you.

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This article was written by the Employment Department of leading London legal firm Olswang

Pact/BECTU Freelance Production Agreement and your pension

Film and TV freelances working for independent production companies can claim an employer pension contribution if their contract is governed by the Pact/BECTU Freelance Production Agreement. The new arrangement involves indies which are members of Pact contributing 4% of the recommended minimum rate into freelances' pension funds.

If you are a freelance and want to receive the contribution, you must first have a BECTU Stakeholder Pension. To set one up call Berkeley Burke on the dedicated helpline number: 0845 634 2010.

You do NOT need to be a member of BECTU to set this up. You can then claim 4% for each job where your contract is governed by the Pact/BECTU Agreement. Pension contribution claim forms need to be submitted to each employer for each engagement. If you don't know whether your employer is a Pact member, or whether they are working to the Agreement, BECTU's advice is, "Just ask".

Bectu and the productionbase will be delighted to hear about Pact companies which work to the Agreement and pay the pension contribution. Equally, we'd like to know about Pact companies that don't use the Agreement, and don't pay the contribution. Ideally, fill in this questionnaire each time you start a new contract, and help us build a picture of how it is working.

The Rory Peck Trust

The Rory Peck Trust is the only charity in the world dedicated to promoting the work, safety and security of freelance media workers in news and current affairs broadcasting worldwide. The Trust subsidises training in hostile environments for freelancers, advises them on insurance and provides financial support to the families of those killed or seriously injured during the course of their work. And much much more. www.rorypecktrust.org

Are you finding the freelance life a big challenge? Join the club...TVFreelancers

There's a new non-union lobby group forming now which is run by and for tv production freelances. It aims to address the hardest aspects of this lifestyle, highlight injustices and compare notes. It's working in your interests. Go to www.tvfreelancers.org.uk to find out more...