Retort#21 Fair practice according to the government and the client

An interim assessment in the Netherlands and the Flemish Community


In Flanders and the Netherlands, developments concerning fair practice are in full swing thanks to artists. But in both countries, the decisive choices are made by others: the governments and clients. How does that work? Where has the recent emergence of fair practice come from? What kind of obstacles do we see on the road to an honest art ecology in both countries, and what kind of solutions can we envision? This article, a comparison between the two, shows that something can be done and needs to be done quickly to address the disproportionate relationships between artists, clients, and governments.

Flanders is home to a vibrant culture of debate, but despite the work of several artists’ initiatives and attention to the topic in the press, remarkably little had happened in the sector and on a political level before 2019.[1] That is now beginning to change, and in two directions: the sector is developing a sweeping package of agreements, the Fair Practices Charter, to improve the position of artists; but at the same time, the newly sworn-in Flemish government is working on a policy that aims to stifle the diversity and socioeconomic quality of the cultural and other non-commercial sectors.

The Dutch Fair Practice Code has brought about a successful start-up period since 2017 in which the whole sector has been mobilised and has steadily become convinced of the insight that fair remuneration is not merely a pleasant side issue, but a socioeconomic necessity and moral obligation. Now the Code has entered the crucial phase of political implementation. But bad omens are piling up.

Engagement from within sector organisations
The Vlaamse Overleg Kunstenorganisaties (Flemish Council of Arts Organisations, oKo) recognise the precarity that the arts sector and especially artists and freelancers are dealing with and are taking the bull by the horns. They’re hard at work on the Fair Practices Charter. A charter in the sense of a document upon which hopefully laws can be based at a later stage, to eventually allow everyone to partake in cultural collaboration ‘on the basis of an equal partnership and with knowledge of the regulatory frameworks’. The four ‘core values’ are solidarity, transparency, sustainability, and responsibility. The Charter will consist of a series of general principles and a toolbox with, at the very least, checklists, model contracts, and tools to calculate ‘minimum fees’.

Interestingly enough, oKo does this from the position of an advocate for organisations in the professional arts sector. It also specifically represents employers for collective labour agreements in the performing arts and music. Nevertheless, oKo engages the entire sector in assembling the Charter and receives broad support. Is seems as though Flanders is following in the Netherlands’ wake as it attempts to embody the law of accelerating arrears. Is that true, and isn’t oKo’s background as an employers’ organisation all too clear in the Charter?

Work is being done in various discipline-based working groups, monitoring focus groups, and a collective work session organised in collaboration with Kunstenpunt,[2] Cultuurloket,[3] and the TheaterFestival. Among other things, a toolbox is being developed that can be used by the entire arts field[4] in the Flemish Community (Flanders and Dutch-speaking services in Brussels) starting in 2020. It proposes principles and agreements to translate the core values into practice by means of collective labour agreements, manuals, checklists, model contracts, and a calculation tool for minimum wages, et cetera. So it seems that it is not the trade unions (ACOD Cultuur, LBC-NVK/ACV, and ACLVB) or artists themselves, but oKo (with whom the aforementioned trade unions negotiated the most recent social agreement for the arts) who will make it possible to create an effective fair practice charter.

In the Netherlands in 2016, a few years after the disruptive cutbacks of Halbe Zijlstra (VVD, 2010-2012), the report ‘Exploration of the labour market in the cultural sector’ by the Sociaal Economische Raad (Socioeconomic Council) and the Raad voor Cultuur (Council for Culture) concluded that ‘the labour market situation of many workers in the cultural sector is worrisome.’ Then Minister of Education, Culture, and Science Jet Bussemaker (PvdA) stated that she wanted to structurally improve the labour market in the cultural sector. To propose a number of items on the agenda that would serve the entire field, she turned to Kunsten ’92,[5] a sector organisation that represents the field in a more balanced way than oKo: ‘Because of the great diversity in the sector, there is a need for a cross-disciplinary solution. I ask Kunsten ’92 to take the initiative to involve employers, trade unions, professional groups, and other partners in the creative and cultural sector from an independent position.’

Kunsten ’92 developed the Fair Practice Code together with various partners, such as Platform BK.[6] The Code is inspired by, among other things, the Brussels artists’ initiative State of the Arts (SOTA), which now plays an increasingly important role in bringing together the voices of artists against the Flemish government.[7] The intended ‘SOTA mark of quality’ had sustainability, transparency, diversity, and solidarity as core values. The mark of quality was never actualised, yet the four core values literally reappeared in the Fair Practice Code, and now three of them are in the oKo Charter. oko has taken the initiative to translate such ultimately non-binding terms into a practical development and integration and can now choose which voices and feedback to include in their elaboration of the Charter. It may seem bottom-up, but that isn’t necessarily the case.

Artists’ practical experience
Artists’ initiatives such as SOTA, on the other hand, are working on the conditions of fair practice on the basis of their practical experience. During a public, communal writing week full of workshops, debates, and presentations, the SOTA Fair Arts Almanac (published in 2019) was written. It contains countless ideas, testimonials, tips and tricks, and other knowledge that is in great demand, also among Flemish sector organisations (with employees who are paid directly or indirectly by government bodies) such as Kunstenpunt and oKo, who appropriate them and implicate them in taking controversial positions. But such organisations haven’t experienced the core values that they propagate and bring into question. An artists’ project such as Caveat (‘collective research into the ecology of artistic practice’) does do that, and with a specific methodology. It establishes working relationships between artists and clients and does not work with standard contracts. Instead of contracts as documents that formalise a transaction under specific conditions, Caveat uses contracts to further define a long-term relationship, a sustainable relationship where risks and stakes are shared. These typically neoliberal concepts are redefined for mutual growth and responsibility for a project and the economic conditions of the staff working on the project. In this way, ‘values’ are understood and shared based on the artistic practice.

In Flanders, a ‘small group of freelance performing artists’ initiated the Charter for the Performing Artist (September 2017), a declaration of solidarity that can be signed by artists and institutions. This was an influential light at the end of the tunnel for many artists in general. They state that they ‘no longer accept un(der)paid work on public projects that take place in or for organisations with one or more employees in regular employment’. Institutions are called upon to agree ‘to ensure the correct remuneration of artists in public activities in which they are involved as direct or indirect employers’. Correct remuneration is always expressed in reference to the collective labour agreement. Moreover, this is also true of oKo. That also explains why the Charter will aim for ‘minimum fees’ instead of fair fees or advised amounts. If requested, an oKo staff member will explain that they must use the collective labour agreements as a guideline. Perhaps that makes sense for a platform that is in fact an employers’ organisation. But the scope of the answer is significant: the Charter seems to have no other choice but to put clients’ interests first; otherwise they would of course undermine their own position. The fact that this is done via the unavoidable detour that is the interests of the rest of the sector is a bonus for contractors. But the clients have taken the first step towards representing the entire field, and from on will also determine the debate on behalf of precariously positioned groups.

But don’t collective labour agreements already offer binding employment conditions?
Various parties play a decisive role in the tense issue of fair practice. Aside from the work by artists themselves, the sector organisations’ Code and Charter, and the collective labour agreements, the following factors are also critically important: the current legal frameworks, the executive power of governments, and the legislative power of governments and parliaments.

In both countries there are collective labour agreements with binding guidelines for wages and other employment conditions. Because institutions rarely employ the artists with whom they work and are in a much more powerful position than the individual artist, the collective labour agreements are rarely complied with.

In Flanders, the movement associated with the Charter for the Performing Artist has calculated daily and monthly equivalent amounts for independent performing artists and musicians, based on the monthly gross wages that are set out in the collective labour agreements. The Charter will likely also contain similar overviews for other disciplines. That does not necessarily mean that it will be easy: in order to be able to work as a self-employed person in Belgium, one must pay a minimum amount of €731 in social contributions (health insurance, disability insurance, pension, etc.). In addition, there are income tax and VAT. Many artists cannot achieve this and work through a ‘social agency for artists’ (SBK) that acts as an intermediary, performs all legal duties, and takes over a chunk of the administrative work for the artist. However, they are not very transparent, and their net fee often seems comparable to that for a self-employed artist.

In the Netherlands, self-employment is very common, with accompanying tax benefits and obligations. Soon self-employed people will be allowed to make collective price agreements. That was formerly forbidden in order to prevent the formation of cartels, but now there are prospects for joining forces and jointly demanding fair payment.

The Belgian federal government maintains the Artists’ Statute, an allowance (between €800 and €1200 per month) to bridge periods of unemployment. This is only for artists who have been receiving regular commissions over a longer period of time and can show contracts for them. In the Netherlands, a bill was submitted 2010 for the withdrawal of the Work and Income for Artists Act. This was one of Halbe Zijlstra’s first attacks on the socioeconomic health of the cultural sector in the Netherlands. Since then, his infamous work as Secretary of Education, Culture, and Science has thoroughly ruined it. Under the adage ‘Nobody is safe,’ and with the announcement that he had no affinity with the sector, he made clear his desire that all ‘subsidy-slurping’ artists go look for other work. The Work and Income for Artists Act (WWIK) offered artists a supplement to their income if they did not earn enough with their artistic work to maintain their livelihood. The first Rutte government (2010-12) systematically forced a crystal-clear awareness of what is and is not ‘fair’ on the precarious group.

Work-based wage
This spectre – intentionally poorly informed and antisocial – is present everywhere, including the most unexpected corners of the art sector itself. This is (not) a love song (TINALS, a people’s tribunal in four acts on precarious work and life discussing wage, love, freedom and risk; Amsterdam, 11 October 2018) is another of these initiatives in which the grass roots of the arts landscape responded in its own way to unjust working conditions. The ‘people’s tribunal’ took shape by alternating various presentations with moments when attendees were invited to position themselves in this space. These improvised, organic interventions were choreographic moments of an exchange of perspectives and confrontation. This was relevant because the audience was extremely mixed. In a conversation about the challenges in finding a relevant way to produce one’s work, someone downplayed the situation by saying that ‘after all, an artist is just like a baker who has to sell bread.’ Remarkably, this was an employee of the Mondriaan Fund, someone who should be aware of the fact that a large proportion of young artists do not work for the market now, but for a ‘subsidy market’ in which competition among applicants is the norm.

Following the report from the Sociaal Economische Raad (Socioeconomic Council, SER) and the Raad van Cultuur (Culture Board, RvC) on the worrying state of the labour market, fair practice quickly went to the top of the list of priorities in the sector and for the government. On November 14, 2017, Jan Zoet, chairman of Kunsten ’92, handed off the Labour Market Agenda for the Cultural and Creative Sector 2017-2023 to current Minister of Education, Culture, and Science Ingrid van Engelshoven (D66). In it, 21 agenda items were formulated around three main themes: dialogue between employers and employees, earning capacity, and employment conditions. One of the agenda items is the Fair Practice Code, the implementation of which is entrusted to Kunsten ’92. On April 12 2019, the Raad voor Cultuur (Council for Culture) stated in its advisory text ‘Keeping culture close, keeping close to culture’ about the coming policy period that the national cultural system must do more to support diverse cultural life in the Netherlands. The Council wanted the minister to include the Fair Practice Code in the subsidy conditions.

In response to this, Minister Van Engelshoven sent her Cultural Policy Principles 2021-2024 to the Lower House on 11 June. In a parliamentary debate she stated, ‘A large part of the cultural sector does not conform to the work-based wage principle.’ In her plan, Van Engelshoven says that fair pay is an ‘indisputable principle’ for her. Every cultural organisation that receives a government subsidy will have to comply with the wage aspects of the collective labour agreements. That is a ‘deal-breaker: institutions that do not subscribe to the codes will not receive a subsidy’. Another proposed measure, on the other hand, was extremely negative: in order to better support the large institutions of the Basisinfrastructuur (Basic Infrastructure, consisting of ninety museums; dance, music, and theatre companies; festivals; development institutions; and presentation institutions), Fonds Podiumkunsten (Performing Arts Fund) will receive €15.8 million less. Kunsten ’92 calculated that this would mean a quarter of the national budget: 36 fewer institutions. Van Engelshoven also indicated that she won’t spend money to enable institutions to enact fair practice for the time being. Kunsten ’92 has found that a minimum of €27 million is necessary to put the code in practice, although it is still not known what fair practice is actually worth in terms of money for cinema, festivals, and music venues. Given that the institutions will completely lose their subsidies unless they earn extra funds themselves, more unfair practice, further impoverishment, and more profit-oriented programming are on the horizon.

The opposition did not agree, and even Van Engelshoven’s own party, D66, were against it. Lodewijk Asscher (PvdA parliamentary group leader and party leader) pointed out the government’s hypocrisy by quoting prime minister Rutte’s demand that businesses make better collective labour agreements: ‘The prime minister has influence on these wages. If the government doesn’t provide money for this, then the prime minister’s words are meaningless.’ His motion was taken up, forcing the government to calculate by February 2020 how much money they should make available to make their own ‘fair’ plans possible. On 17 September, the Government Budget for 2020 was presented, and there is indeed no money to implement the Fair Practice Code. There are also various measures that will hinder small self-employed entrepreneurs, including the introduction of compulsory, expensive disability insurance.

Flanders, and oKo in particular, are keeping a close eye on developments in the Netherlands. During a focus group for the Charter, one topic was the Mondriaan Fund’s experimental incentive compensation regulations,[8] the incentive for visual art institutions to grow to a ‘new normal’, but that expires at the end of the current policy period, even if no money is added for fair practice. An oKo employee sighed, ashamed on their behalf, it seems: “Classic Dutch…”

Art and government: Opponents?
In his ‘State of the Dance’, on Friday 4 October, choreographer Jasper van Luijk used the metaphor of a broiler chicken: ‘We’re being quickly fattened up by all sorts of policy-based arrangements to rise to great heights in a short amount of time. For many of us the slaughter will follow soon. Within this system, my generation is losing its autonomy. We are losing the opportunity to develop, experiment, make mistakes, and try again.’ Van Luijk is referring to a lack of sustainable involvement from the Dutch government. And the Flemish political equivalent of the work by artists and sector organisations concerning fair practice is also not positive.

Since the formation of the new Flemish government at the beginning of October 2019, there is no longer a dedicated Minister of Culture. Sven Gatz (Minister of the Department of Culture, Youth, and Media, Open Vld) was succeeded by Prime Minister Jan Jambon (Nieuwe Vlaamse Alliantie [New Flemish Alliance]) who included culture as part of his portfolio along with foreign policy and development aid. Jambon (one of the founders of the Vlaams Blok [Flemish Block] in the rich Antwerp municipality of Brasschaat in the late ‘80s) pays particular attention to culture, as the first sentence in the coalition agreement indicates: ‘Culture is in the Flemish DNA.’ The values it expresses, however, in contrast to those of SOTA, Caveat, and the Charter, lie in the sphere of Flemish identity, excellence, export potential, and making large institutions even larger. Instead of supporting the diverse and fruitful Flemish cultural sector, the Prime Minister of Culture wants to strain the art world through a monocultural, neoliberal sieve: ‘In the assessment [of grant applications] the selection is made primarily in order to raise the potential to an international level. More selective choices must also lead to better support for those who meet the standard,’ according to the coalition agreement.

Divide and conquer
On November 9, these intentions were detailed and made concrete: 3% (€1.66 million) cutbacks on the seven Institutions of the Flemish Community (equivalent to the Basisinfrastructuur [Basic Infrastructure] in the Netherlands), 6% (€5.88 million) on all other operating subsidies, and 60% (from €8.47 million to €3.39 million) on project subsidies. That’s a total of €12.6 million out of a total culture budget of €162 million. Twelve point six million euros is a relatively small sum – in comparison, the federal Belgian budget deficit is €8 billion. Jambon’s cutbacks should therefore not be seen as austerity measures but as an ideological attack – ‘silencing the art sector’, as artist Rune Peitersen stated during a protest meeting organised by SOTA in the Beursschouwburg (Brussels), which he described as déjà-vu, reminding him of the protest movement in the Netherlands he was closely involved in a few years ago. ‘This is not a budget, this is censorship’, the crowd also chanted outside the Flemish parliament. The indignation is particularly strong over the cuts to the project grants, on which young makers are particularly dependant. In addition, artists will naturally suffer greatly from the 6% shaved off of the budget for the institutions. The announced but not yet definitive cutbacks will seriously bleed the entire sector, especially in the long term, given how much the project subsidies will be axed. The ‘excellent’ Flemish culture that Jambon thinks he is propagating is being poisoned at the root.

‘Censorship’ is no exaggeration when Jambon’s cultural cuts are viewed from the broader perspective of his measures: in addition to cuts that will affect the unemployed, the poor, education, and the climate, (to name just a few), the VRT’s (Flemish Radio and Television Broadcasting Organisation) budget will be cut by €2.4 million in 2020, cuts that will rise annually up to €12 million in 2024. That these interventions make independent journalism more difficult is in keeping with the image of a neoliberal wrecking ball that is destroying the whole of European society. To bring things back to the artists, Luc Tuymans – one of Flanders’ most significant advertisements for its excellence – calls Jambon’s policy an ‘autocratic system’.

In reaction to the protests, Jambon has chosen to divide and conquer: he has invited the sector to make its own proposal for the distribution of the announced cuts among the various beneficiaries. He is thus trying to play the parties against each other. In this context, it will be interesting to see how oKo will play its dual role as employers’ organisation and representative of the entire sector. The political support for financing the Flemish arts sector is not only gloomy: Jambon’s coalition members are also speaking out against him. Stefanie D’Hose (Open Vld) is surprised: ‘Yes, everyone has to save money, but the way you do, that’s another story here.’ Karin Brouwers (CD&V, Vice-chairperson of the Culture Committee) is also very critical, stating that the government should ‘look for a new balance in the coming years, so that young artists still get opportunities’. The situation does not seem completely hopeless, although the coalition members wouldn’t go so far as to let the government founder.

Rich and out of whack
The Netherlands and Flanders are richer than ever. Why delay a fair arts sector any longer? Agenda item 1.3 of the Labour Market Agenda stated: ‘Make a sector-wide Fair Practice Code. How do we arrive at fair compensation for everyone who works in the cultural and creative sector?’ Bringing the whole arts sector together – clients and contractors – in full support of fair practice is only half the job. Collective agreements among the self-employed can now put extra pressure on clients. But convincing a government to appreciate non-commercial work is extremely difficult given the current ideology, for employers’ organisations as well. Everyone who is involved in culture should appreciate culture unconditionally. And certainly governments, even right-wing governments. And not in a ‘classic Dutch’ way with short-term solutions that assuage the protest but in the long term destabilise the relationships even further in favour of a market ideology.

Successive governments have been harming working conditions more and more, and have not undone the measures of their predecessors, but passed them on to the sectors themselves – sectors whose natures aren’t ‘self-reliant’, i.e. commercial, at all. To this end, Jambon even uses the rhetorical fallacy that the arts sector must show solidarity – with the other sectors whose commitment to society he wants to sabotage with his plans.

To create better conditions for artistic production, long-term vision and commitment are needed. The way to achieve this seems to be collective and sustained pressure from the sector and the political opposition. Soon it will become clear whether Jambon will succeed. In February 2020, the Dutch government will have to present an amount that will be provided to make the mandatory Fair Practice Code feasible for the sector itself. By that time, the Fair Practice Charter will also have been presented in Flanders. Then we’ll be able to see clearly what the value of culture is in the eyes of the Dutch and Flemish governments and cultural employers.

[1] One exception is the Audiovisual Sector Social Charter (2013), which applies exclusively to the audiovisual sector.

[2] Kunstenpunt: a broad and cost-free point of support for artists in all disciplines, financed by the Flemish Community. An independent organisation that has a ‘management agreement’ with the government in which the powers and responsibilities are defined. Kunstenpunt is part of the cultural superstructure, a group of intermediary organisations that forms the link between policy and the cultural field.

[3] Cultuurloket, (formerly Kunstloket until 2018): cost-free point of support specifically for juridical and financial cases, co-financed by the Flemish Community.

[4] Fair Practice Charter: agreements and toolbox for fair practice in the performing arts, music, and visual and audiovisual art, though it is not yet clear whether audiovisual art will fully take part in this.

[5] Kunsten ’92: valuable stakeholder organisation for the art, culture, heritage, and creative sectors, with only 370 members, according to them.

[6] A relevant pioneer is the Cultural Sector Plan (2014), with concrete measures and projects. It is a communal project with employers’ and workers’ organisations and social funds in the cultural sector, ‘to preserve employment and make existing staff sustainably employable, also outside the sector’. To achieve this, the Cultural Sector Plan for a sustainable labour market has been created. The plan, which involves an investment of €4.6 million, consists of eight measures for a stronger cultural sector. The sector itself finances half of it.

[7] State of the Arts, ‘platform for artists, researchers, thinkers’. A civil movement from within the art world, which has had values such as care, diversity, and solidarity in its DNA since its founding action ‘We just called to say how much we care’ at the Flemish Parliament (Brussels, August 2014).

[8] Experimental regulations: the Mondriaan Fund supplies the extra funding when visual arts institutions want to reimburse according to the directive but lack the necessary budget for it. The Ministry of Education, Culture, and Science made €600,000 available.

About Jesse van Winden

Jesse van Winden (Dutch, 1986) is a curator-researcher at Jubilee. He graduated (cum laude) from the Free University of Amsterdam with a degree in Fine Arts, Media & Architecture. His dissertation 'Destabilising Critique: Personae in between self and enactment' (2014) offers a historically based theoretical framework of persona and a method to analyse persona performance, and was received with great appreciation. As a result, he presented new research into the artist's personality at various international conferences (Cleveland, Aarhus, Melbourne). From the end of 2012 until the beginning of 2016, Jesse was editor-in-chief of Kunstlicht, the oldest Dutch magazine for visual art, visual culture and architecture.