Suggesting age limit for models

[TheQuestion]

To be more exact, I will say that modelling is not likely to be considered "employment".

nope i talked to agencies about this b4. apparently full time models are considered unemployed coz the gov doesn't consider modeling as a form of employment.

 

[yoshi27]

I wouldn't go so far to say that models (full time or otherwise) would not be considered "employed" for the purposes of the Employment Act. The Act does not expressly exclude models, nor am I aware of any cases with such findings.

Interestingly, Part VIII of the Act does not use the word "employee" (which means a person who has entered into a "contract of service"). Contract of service is a contract underwhich a person agrees to be employed as an employee. This differs from someone who works as an independent contractor.

Since Part VIII is not qualified by the use of the word "employee", there is room to argue that the Part prohibits both the employment of a person under a "contract of service" or as an independent contractor.

 

[TheQuestion]

I wouldn't go so far to say that models (full time or otherwise) would not be considered "employed" for the purposes of the Employment Act. The Act does not expressly exclude models, nor am I aware of any cases with such findings.

Interestingly, Part VIII of the Act does not use the word "employee" (which means a person who has entered into a "contract of service"). Contract of service is a contract underwhich a person agrees to be employed as an employee. This differs from someone who works as an independent contractor.

Since Part VIII is not qualified by the use of the word "employee", there is room to argue that the Part prohibits both the employment of a person under a "contract of service" or as an independent contractor.

see here's the thing. you're arguing from a statue that in some ways doesn't explicitly spell things out. I'm stating a fact that I've gleaned from my experience from dealing with the local legit agencies.

 

[wootnick]

well the loop hole around this is that technically modeling is not considered a job by our government. NEXT!

Which is why the law intelligently employed the use of 'occupation' instead of 'job' or 'employment'. Use of english in legislation is very precise, sometimes unreasonably so. Technically, modeling is considered an occupation, whether it is a job or employment varies with different opinions.


EDIT: Apologies, I've just realised that I've repeated what the previous two posts have said, but I'll leave this post here anyhow.

 

[TheQuestion]

Which is why the law intelligently employed the use of 'occupation' instead of 'job' or 'employment'. Use of english in legislation is very precise, sometimes unreasonably so. Technically, modeling is considered an occupation, whether it is a job or employment varies with different opinions.


EDIT: Apologies, I've just realised that I've repeated what the previous two posts have said, but I'll leave this post here anyhow.

are you a lawyer? coz now all you're doing is arguing semantics.

 

[scandal599]

not to burst your bubble but if they dun need to advertize then please explain to me why they have ads on jobsdb.com?

Hmmmmm...good point...have not been looking at Jobsdb for donkey years already

 

[wootnick]

are you a lawyer? coz now all you're doing is arguing semantics.

I wish I could be. Though we are talking about the law, and it's almost always the use of language that bites most of us in the ass, no? Just trying to be helpful in my own little way. ^^

 

[vince123123]

Regulation 3 does say "employed in any occupation". Not just "occupation".

It is my view that Regulation 3 is intended to catch employees (as opposed to independent contractors). The term "occupation" in my view, was used to say that there is no difference between "industrial or non-industrial" occupations, as differentiated in Section 68.

Also, contrary to what you hvae asserted in your second paragraph, Part VIII does not say "employee" but it says "employed". Section 68 which talks about prohibtion of employment of children, uses the word "employ" or "employed" as does other references to "employment" in that Part.

Section 2 provides the definition of employer and employee, and I can therefore provide what I feel, is a better view as a counterargument to your argument, that the words "employ", "employed" and "employment" must be in reference to the definition of "employee" and "employer" in Section 2.

I wouldn't go so far to say that models (full time or otherwise) would not be considered "employed" for the purposes of the Employment Act. The Act does not expressly exclude models, nor am I aware of any cases with such findings.

Interestingly, Part VIII of the Act does not use the word "employee" (which means a person who has entered into a "contract of service"). Contract of service is a contract underwhich a person agrees to be employed as an employee. This differs from someone who works as an independent contractor.

Since Part VIII is not qualified by the use of the word "employee", there is room to argue that the Part prohibits both the employment of a person under a "contract of service" or as an independent contractor.

Which is why the law intelligently employed the use of 'occupation' instead of 'job' or 'employment'. Use of english in legislation is very precise, sometimes unreasonably so. Technically, modeling is considered an occupation, whether it is a job or employment varies with different opinions.


EDIT: Apologies, I've just realised that I've repeated what the previous two posts have said, but I'll leave this post here anyhow.

 

[vince123123]

As I have stated earlier, that's just what I said. Models are not likely to be considered employees. In fact, I've reviewed a couple of modelling agency agreements before when assisting my model friends in legal disputes, and in my recollection (which can be rebutted) these agreements include a term which expressly provides that the model is not their employee.

nope i talked to agencies about this b4. apparently full time models are considered unemployed coz the gov doesn't consider modeling as a form of employment.

 

[redstone]

What about shooting models on a personal basis (one to one private transaction) vs thru an agency?

 

[yoshi27]

Regulation 3 does say "employed in any occupation". Not just "occupation".

It is my view that Regulation 3 is intended to catch employees (as opposed to independent contractors). The term "occupation" in my view, was used to say that there is no difference between "industrial or non-industrial" occupations, as differentiated in Section 68.

I agree that the word "occupation" does not differentiate between "industrial or non-industrial" occupation - but that does not support your view that it is intended to catch employees (as opposed to independent contractors).

One can interpret the use of "industrial or non-industrial undertakings" to cover both undertakings under a contract of service and as an independent contract. The use of the word "occupation" would therefore refer to any occupation, being industrial or non-industrial, and whether under a contract of service or otherwise.

Also, contrary to what you hvae asserted in your second paragraph, Part VIII does not say "employee" but it says "employed". Section 68 which talks about prohibtion of employment of children, uses the word "employ" or "employed" as does other references to "employment" in that Part.

Umm...I think in my second paragraph, I stated that Part VIII does not use the term "employee"?

Section 2 provides the definition of employer and employee, and I can therefore provide what I feel, is a better view as a counterargument to your argument, that the words "employ", "employed" and "employment" must be in reference to the definition of "employee" and "employer" in Section 2.

I beg to differ from your view that the words "employ", "employed" or "employment" must be in reference to the defined terms "employee" and "employer".

The definition of "contract of service" is "any agreement....whereby one agrees to employ another as an employee and the other agrees to serve his employer as an employee...". If the word "employ" must be in reference to the definition of "employee" and "employer", there wouldn't be a need to expressly refer to them in the definition of "contract of service". It could just state "any agreement...whereby one agrees to employ another and the other agrees to serve his employer...".

Section 53, "[a]ny employer who employs any person as an employee contrary to the provisions of this Part...." expressly refers to "employee". In my view, if the word "employ" must refer to "employee", why would this be necessary?

Again, section 68(1), "[n]o person shall employ a child in an industrial or a non-industrial undertaking except as provided for in subsections (2) and (3)." If employ must refer to "employee" and "employer" the provision could simply state that "no person shall employ a child except as provided for in subsections (2) and (3)." The subsection speaks for themselves, and there is no need to introduce the terms "industrial or non-industrial undertaking" in subsection (1).

On the contrary, section 74, which provides that "[a]ny person who employs a child or young person in contravention of the provisions of this Part....", does not use the word "employee".

 

[yoshi27]

As I have stated earlier, that's just what I said. Models are not likely to be considered employees. In fact, I've reviewed a couple of modelling agency agreements before when assisting my model friends in legal disputes, and in my recollection (which can be rebutted) these agreements include a term which expressly provides that the model is not their employee.

This is a simplistic view of things. Just because there is a term excluding the formation of an employer-employee relationship is not conclusive of whether such relationship exists. It is a factor to be taken into consideration, but not necessary the conclusive . One will need to look into other factors, e.g., degree of control, right to dismissal, etc.

Further, there is established case law wherein the courts, considering other facts, found that a person was an employee, notwithstanding the presence of a contract which provides that the person was employed as an independent contractor.

 

[yoshi27]

see here's the thing. you're arguing from a statue that in some ways doesn't explicitly spell things out. I'm stating a fact that I've gleaned from my experience from dealing with the local legit agencies.

Unfortunately, the statute is a tad ambiguous, and may be open to different interpretations.

I don't dispute the fact that this legit agency has given their view on whether a certain vocation is considered a job or occupation. However, I am sure such agency has no authority to give interpretation to the law.

For instance, pick up any Singapore prospectus. A prospectus is required to conform with prescribed requirements under certain laws and regulations. The prospectus is reviewed by the Monetary Authority of Singapore before it may be registered and issued to the public. Just because the MAS okays the draft for registration does not mean that the prospectus is in compliance with the law. In fact, it is a requirement to state on the cover of the prospectus that the MAS assumes no responsibility for the contents and registration of the prospectus does not imply that the laws have been complied with.

These agencies may give us guidance, but what they say is not conclusive.

 

[vince123123]

1. Occupation

What I was saying is that the word "occupation" is not intended to catch both employees and independent contractors, but was used to catch both industrial or non-industrial undertakings.

As you can see, Section 68 imposes different rules on industrial and non-industrial undertakings.

What I was saying that Regulation 3, instead of saying "Subject to section 68 (2) of the Act, no child who is below the age of 13 years shall be employed in any industrial or non-industrial undertakings", the words "industrial or non-industrial undertakings" is replaced with the superset word "occupations".

2. Employed/Employ/Employment vs Employee/Employer

Whilst using the term "employ" and "employee" in the same Section, as quoted in examples raised by you, does make for bad drafting, it does not mean that there is automatically, a conclusion that "employ" has a different meaning from "employee". We can discuss the many ways drafting of a statute can be improved, but that alone is not a conclusive means of statutory interpretation.

Your case would be better, as far as statutory interpretation goes, if the Act contains a Section which has the word "employ" together with what is obviously an independent contractor, say for example: Definition of "contract for service" (as opposed to "of service") is "any agreement...whereby one agrees to employ another as an independent contractor but such that the latter is not subject to the control of the former etc etc".

However, there is no such example and I don't think you can find it anywhere.

I think you will be stretching the argument very far to say that "employ" covers both "employees and independent contractors". If so, I can easily argue, why not use the word "hire" instead? In my mind, it is simply bad drafting, rather than an intentional differentiation between "employ" and "employee".

Finally, in the Hansard for the Employment (CAYP) Regulations, the Minister makes reference to "employers of persons" and gives examples of working in Burger King; and that "Ministry is of the view that there is no need to disallow employers from employing school children below the age of 16"- using both "employers" and "employing" in the same breath.

I also believe that the entire Employment Act was intended to cover a situation of employment (in fact only a subset of employment really), and not of independent contractors. If you can find an example of independent contractors being covered in the Employment Act, please let me know.

Of course, you are free to take a different view and we can simply just agree to disagree on the interpretation of the statute .

3. Case Law - Contract of Service vs Contract for Service

The case of a modelling agency representing a model may be less clear (although I still submit that it is not employment), but I think that you will agree that the hiring of models by photographers is very unlikely to be construed as "employment". Lets tackle this first, since what is of interest to CS here is photographers first, not modelling agencies.

I never said that the declaration of non-employee by a modelling agency is an automatic conclusion. It is however a relevant factor to be taken into account according to case law.

Whether something is construed as employment as case law has provided, follows a series of factors, such as the declaration above, whether there is control , power of selection, power to control method of work, right of suspension or dismissal, whether the man providing the services provides his own equipment, hires his own helpers, degree of financial risk taken, degree of responsibility of management, and whether he has the opportunity of profiting from sound management in the performance of his task.

If after considering the above factors, you still take the view that the hiring of models by photographers constitutes employment, do share your views on why you think this is the case, with regard to the factors above.

I agree that the word "occupation" does not differentiate between "industrial or non-industrial" occupation - but that does not support your view that it is intended to catch employees (as opposed to independent contractors).

One can interpret the use of "industrial or non-industrial undertakings" to cover both undertakings under a contract of service and as an independent contract. The use of the word "occupation" would therefore refer to any occupation, being industrial or non-industrial, and whether under a contract of service or otherwise.

Umm...I think in my second paragraph, I stated that Part VIII does not use the term "employee"?

I beg to differ from your view that the words "employ", "employed" or "employment" must be in reference to the defined terms "employee" and "employer".

The definition of "contract of service" is "any agreement....whereby one agrees to employ another as an employee and the other agrees to serve his employer as an employee...". If the word "employ" must be in reference to the definition of "employee" and "employer", there wouldn't be a need to expressly refer to them in the definition of "contract of service". It could just state "any agreement...whereby one agrees to employ another and the other agrees to serve his employer...".

Section 53, "[a]ny employer who employs any person as an employee contrary to the provisions of this Part...." expressly refers to "employee". In my view, if the word "employ" must refer to "employee", why would this be necessary?

Again, section 68(1), "[n]o person shall employ a child in an industrial or a non-industrial undertaking except as provided for in subsections (2) and (3)." If employ must refer to "employee" and "employer" the provision could simply state that "no person shall employ a child except as provided for in subsections (2) and (3)." The subsection speaks for themselves, and there is no need to introduce the terms "industrial or non-industrial undertaking" in subsection (1).

On the contrary, section 74, which provides that "[a]ny person who employs a child or young person in contravention of the provisions of this Part....", does not use the word "employee".

 

[TheQuestion]

1. Occupation

What I was saying is that the word "occupation" is not intended to catch both employees and independent contractors, but was used to catch both industrial or non-industrial undertakings.

As you can see, Section 68 imposes different rules on industrial and non-industrial undertakings.

What I was saying that Regulation 3, instead of saying "Subject to section 68 (2) of the Act, no child who is below the age of 13 years shall be employed in any industrial or non-industrial undertakings", the words "industrial or non-industrial undertakings" is replaced with the superset word "occupations".

2. Employed/Employ/Employment vs Employee/Employer

Whilst using the term "employ" and "employee" in the same Section, as quoted in examples raised by you, does make for bad drafting, it does not mean that there is automatically, a conclusion that "employ" has a different meaning from "employee". We can discuss the many ways drafting of a statute can be improved, but that alone is not a conclusive means of statutory interpretation.

Your case would be better, as far as statutory interpretation goes, if the Act contains a Section which has the word "employ" together with what is obviously an independent contractor, say for example: Definition of "contract for service" (as opposed to "of service") is "any agreement...whereby one agrees to employ another as an independent contractor but such that the latter is not subject to the control of the former etc etc".

However, there is no such example and I don't think you can find it anywhere.

I think you will be stretching the argument very far to say that "employ" covers both "employees and independent contractors". If so, I can easily argue, why not use the word "hire" instead? In my mind, it is simply bad drafting, rather than an intentional differentiation between "employ" and "employee".

Finally, in the Hansard for the Employment (CAYP) Regulations, the Minister makes reference to "employers of persons" and gives examples of working in Burger King; and that "Ministry is of the view that there is no need to disallow employers from employing school children below the age of 16"- using both "employers" and "employing" in the same breath.

I also believe that the entire Employment Act was intended to cover a situation of employment (in fact only a subset of employment really), and not of independent contractors. If you can find an example of independent contractors being covered in the Employment Act, please let me know.

Of course, you are free to take a different view and we can simply just agree to disagree on the interpretation of the statute .

3. Case Law - Contract of Service vs Contract for Service

The case of a modelling agency representing a model may be less clear (although I still submit that it is not employment), but I think that you will agree that the hiring of models by photographers is very unlikely to be construed as "employment". Lets tackle this first, since what is of interest to CS here is photographers first, not modelling agencies.

I never said that the declaration of non-employee by a modelling agency is an automatic conclusion. It is however a relevant factor to be taken into account according to case law.

Whether something is construed as employment as case law has provided, follows a series of factors, such as the declaration above, whether there is control , power of selection, power to control method of work, right of suspension or dismissal, whether the man providing the services provides his own equipment, hires his own helpers, degree of financial risk taken, degree of responsibility of management, and whether he has the opportunity of profiting from sound management in the performance of his task.

If after considering the above factors, you still take the view that the hiring of models by photographers constitutes employment, do share your views on why you think this is the case, with regard to the factors above.

thank you vince for spelling things out. I was getting tired of arguing semantics with someone who didn't know anything.

 

[vince123123]

Heh, well I won't really say he doesn't know anything; he just took a different interpretation and at least does substantiate his views, which is sometimes a refreshing change from others who simply barrel their way without substantiating their views but merely throw sweeping one liners.

thank you vince for spelling things out. I was getting tired of arguing semantics with someone who didn't know anything.

 

[TheQuestion]

Heh, well I won't really say he doesn't know anything; he just took a different interpretation and at least does substantiate his views, which is sometimes a refreshing change from others who simply barrel their way without substantiating their views but merely throw sweeping one liners.

>.> at you know who

 

[Octarine]

Vince, thank you very much for these clear words. I suggest to extract this posting (and maybe some others in this thread) and make it sticky. It's not only relevant for photographers hiring models but also for couples hiring a photographer for wedding etc. Once the nature of the business connection is clear (employment vs. hiring) also things like copyright, ownership of pictures etc. get clearer.

 

[vince123123]

You're welcome. I'm always happy to assist in discussions of a legal nature that affect photographers

Vince, thank you very much for these clear words. I suggest to extract this posting (and maybe some others in this thread) and make it sticky. It's not only relevant for photographers hiring models but also for couples hiring a photographer for wedding etc. Once the nature of the business connection is clear (employment vs. hiring) also things like copyright, ownership of pictures etc. get clearer.