Are screenwriters paid for a product or a service? The definition matters for their workplace rights

The film and television sector in Australia employs over 26,000 workers and generated more than A$4.5 billion in income in 2021–22. TV dramas generate a large part of this revenue.

Australian screen workers, including screenwriters, have traditionally been classified by productions as freelancers or contractors. In many cases, this means they have not been paid entitlements most other workers in Australia have access to.

A December ruling by the Australian Taxation Office defined many Australian screenwriters as employees, and therefore they should be paid superannuation. Now, the Australian Writers Guild and Screen Producers Australia are each “seeking legal advice” on what this ruling could mean for scriptwriters and Australia’s screen sector.

Mandated superannuation

The superannuation guarantee mandates employers make superannuation contributions for eligible employees in line with the minimum contribution rate (now 12%).

Historically, scriptwriters, like other arts workers, have been mainly engaged as freelancers, not employees. This means they are not always paid superannuation and other legal entitlements that come from being an employee.

But a December 2024 tax office ruling specifically defined many screen workers as employees.

This ruling advises that someone who sells an existing script (such as someone who wrote a film at their own initiative, and then sold the script to a producer) is not an employee, but “selling property”. These writers are not eligible for super payments.

But the ruling found people who are regularly working scriptwriters (such as those working in a writers’ room for a TV series) may be legally considered employees, and are eligible for payments and protections offered to employees.

Screen Producers Australia sees things differently. Information provided to their members argues scriptwriters are paid for the intellectual property rights associated with their product – meaning they are selling property.

Opposing this, the Australian Writers Guild argue scriptwriters on long-running TV programs or in writers’ rooms are performing services and are employees of the production companies.

If the screen production companies do not fall in line with the tax office ruling, the Australian Writers Guild have not ruled out undertaking legal action through a class action suit, or a strike.

As the guild is not a union, they cannot undertake protected industrial action. But the guild could encourage a “wildcat strike”: a spontaneous work stoppage without union leadership. They recognise, however, this would have the impact on member livelihoods.

What does this mean for scriptwriters?

The ruling from the tax office outlines how it would apply the legislation, but it has not yet been tested legally. If the ruling is tested legally – by, say, legal action from scriptwriters seeking superannuation payments – and scriptwriters are found to be employees, it could greatly affect their work and pay.

Not only could this lead to mandated superannuation contributions, but access to other entitlements such as parental leave, holiday pay and redundancy provisions.

Australian artists earn on average 26% below the workforce norm, with incomes decreasing in real terms.

Working conditions for Australians in the screen industries are difficult. Those working in the sector suffer from high levels of burnout and face systemic barriers when not white, male and able-bodied.

Scriptwriters in Australia often struggle to achieve sustainable careers. Scriptwriting fees often don’t fully cover the research and writing involved in script development, and the rise of streaming services has seen residuals – money made from licence fees of past work – all but disappear.

Secure work in writers’ rooms for television series is also diminishing as these shrink in both team size and duration, limiting opportunities for emerging writers.

Freelance scriptwriters may lack basic worker rights like minimum wage, job security, union bargaining and workers’ compensation insurance.

For those lucky enough to secure work, superannuation and other entitlements can be negotiated into individual contracts. Until now, this has relied on individuals having the power and ability to engage in contract negotiation.

Creative Workplaces – the division of Creative Australia formed in 2023 to address issues of pay, safety and welfare across the arts – recently launched a website. It offers industrial resources for arts organisations and workers to understand their rights and obligations.

This is an important tool for all in the creative industries to ensure they receive the minimums under the law. But it is not a regulatory body. The onus is on organisations and workers to put into practice the relevant contracts and employment relationships.

As the writers guild argues, it should not be up to individual workers to negotiate for basic worker entitlements. The recent tax office ruling, they say, means entitlements should include superannuation for many scriptwriters.

A sustainable screen career

As with other workplace issues impacting artists in recent years, scriptwriters deserve basic legal protections. They also deserve the safety and security that comes from being recognised as employees.

TV drama provides a valuable training ground for Australian creatives. Fostering talent includes the creation of liveable working conditions.

Initiatives such as Creative Workplaces can provide information, but leaders within creative organisations, production companies and other decision makers must act.

Producers may choose now to pay super, in line with the tax office ruling, or they may wait for legal precedent to be set. And while they must adhere to legal minimums, production companies must also consider whether those working with them can earn a sustainable living on these minimums, or if they should offer better employment terms.

If we want a future for screen stories in Australia, support for those working in the sector to build an enduring career is essential.

The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.