[fbjim]

On the other hand, in the UK at least, successive governments have tinkered both positively and negatively with employment rights. It's by no means the case that rights have merely been eroded. For example:

https://www.cipd.co.uk/knowledge/fundamentals/emp-law/about/legislation-updates#gref

Whilst I get the 'irony' bit, it seems to me that the ETO is simply doing this year what it has done in previous years, and which no-one paid any attention to: freelancers were already being "sacked" from year to year, because that's the nature of its employment practice.

yes - if the musicians had been hired as year-to-year independent contractors with the expectation of an unbinding handshake deal that the contract would be renewed in perpetuity, there's really nothing "wrong" here - except the ridiculous situation that this is at all an equitable labor arrangement for anyone involved.

it should be relatively obvious why papers such as the Times/Telegraph/Daily Mail, and Norman Lebrecht, would rather not focus on the employment rights issue and focus on right wing culture war issues here.

 

[Sid James]

^ The difference is that precarious employment has been normalised, this diversity policy hasn't.

The political process of using think tanks like the one which devised this policy has been standard practice now for ages. Government pays someone to give them the advice that they want, which in turn legitimizes the implementation of what they had intended from the start. Nobody, least of all voters, believe this to be something other than the cynical PR exercise it is.

But to get back to the case at hand, it looks like there was no way out for the ETO musicians, pandemic or not they just have to suck it up. By necessity, unions prioritise the rights of permanent employees, so they won't be able to help much here.

Every cloud has its silver lining, and I guess given all the negative media attention this case has received, other ensembles will think twice before doing exactly the same thing.

 

[HenryPenfold]

I would suggest that the various employment and other lawyers who have thus far contributed to the discussion in this thread, read the ETO Director's letter to the musicians who have so far been engaged in a contract for services. It's quite an important document in this case. And perhaps you all might want to brush up on caselaw (recent decided cases on this matter).

 

[HenryPenfold]

I would also direct the experts who have contributed to this discussion to the recent decided case of the 'Uber Drivers'. The principles decided are highly germane.

 

[Forster]

Should one of the aggrieved freelancers take the ETO to court, then a determination can be made on the case. Until then, we can all rest easy in our armchair speculation about what the points are on which the matter might be decided. I doubt it will hinge on what the CEO wrote in his letter, but on what actions were actually taken and what parts of employment law a judge decides applies in this case. One take on the Uber case says this:

The Supreme Court explained that the true picture of a working relationship may not be fully represented by a written agreement, even where it has been read, understood and signed by both parties. Therefore, the real situation and conduct of the parties must also be considered.

https://www.shoosmiths.co.uk/insigh...-decision-in-the-uber-case-mean-for-employers

If the written contract is less important than the reality of the arrangement, how much less so is the CEO's letter?

Have any of the musicians themselves actually spoken out? Is a court case likely?

 

[HenryPenfold]

Should one of the aggrieved freelancers take the ETO to court, then a determination can be made on the case. Until then, we can all rest easy in our armchair speculation about what the points are on which the matter might be decided. I doubt it will hinge on what the CEO wrote in his letter, but on what actions were actually taken and what parts of employment law a judge decides applies in this case. One take on the Uber case says this:

https://www.shoosmiths.co.uk/insigh...-decision-in-the-uber-case-mean-for-employers

If the written contract is less important than the reality of the arrangement, how much less so is the CEO's letter?

Have any of the musicians themselves actually spoken out? Is a court case likely?

You're chewing more than you've bitten off.

 

[Sid James]

I would also direct the experts who have contributed to this discussion to the recent decided case of the 'Uber Drivers'. The principles decided are highly germane.

Drivers are so important, yet they're at the bottom end of the gig economy. On a related note, I like the work of Ken Loach, who has for decades directed many films on how changes have impacted on the working class. A few here would remember Riff-Raff from the '90's.

A couple of years ago I saw Sorry We Missed You, which tells a story which is all too real. He's a delivery driver, she's a nurse and they are both precariat, outsourced labour. They have two children, and due to unpredictable work can't devote the time and energy they'd like to their family. The older son goes into petty crime and the younger daughter can't fully understand why her parents are hardly around or awake.

In the end, the father gets badly injured in a mugging, but has to work the next day. He can't afford to be sick because there's a clause in his contract that if he misses a day he has to hire another driver to cover him (or get fined).

That lack of resolution is reality for so many people. Although the music industry isn't the same as transport, there are parallels between them since this sort of casualisation and outsourcing of labour cuts across the entire economy. The current pandemic has made this even more apparent than it already was.

 

[fbjim]

Drivers are so important, yet they're at the bottom end of the gig economy. On a related note, I like the work of Ken Loach, who has for decades directed many films on how changes have impacted on the working class. A few here would remember Riff-Raff from the '90's.

as i like telling people, what would you notice more- if every marketing director and project manager took the day off tomorrow, or if every cashier did?

 

[JTS]

You cannot terminate a contract that has come to its natural end.

They are not terminating anyone - they are not giving some musicians new contracts for the next touring season. There is a difference. It is not uncommon for touring companies or shows to recast their musicians every so often to suit the needs of the production or simply because other members of the cast are not renewing their contracts because they are retiring or have new gigs.

Lebrecht uses the word "dismissal" not the ETO. It misrepresents what the ETO is doing. Language is being twisted to suit a political agenda. No-one was sacked or terminated, their contracts were not renewed

2+2 does not equal 5. It doesn't matter how many fingers the party is holding up.

When is the two minute hate on? I wouldn't like to miss it.

You have hit the nail on the head because a freelancer is a freelancer. My son is a freelance musician in another area and was one day told by someone he had worked with for quite some time these services were no longer required and the hirer wanted to work with somebody else. He had absolutely no rights whatsoever because he was only hired on a freelance basis. Someone else was found who was reckoned to be more suitable and he just had to suck it up and find other work. Thankfully his talent ensured he did. But there was no recourse to law. What the ETO did was make the mistake of a very clumsily written document explaining their reasons. My own feeling this is a retrograde step as a musician should merely be hired on the basis of their ability not on some diversity whim by an arts council freak who probably doesn't know Bach from the Beatles. But this is the nature of balmy society

 

[Forster]

My own feeling this is a retrograde step as a musician should merely be hired on the basis of their ability not on some diversity whim by an arts council freak who probably doesn't know Bach from the Beatles.

So the idea of diversity, never mind the clumsy letter, should have no part to play in recruitment at all? Or is music some special field and diversity is okay in others?

 

[JTS]

So the idea of diversity, never mind the clumsy letter, should have no part to play in recruitment at all? Or is music some special field and diversity is okay in others?

Recruitment should be on the basis of ability. Anything wrong with that?

 

[Forster]

Recruitment should be on the basis of ability. Anything wrong with that?

So, taking the most obvious example of "recrutiment by ability alone", the VPO was totally justified in not having any women in its ranks until the recent past (1997)?

 

[Kreisler jr]

Yes, diversity should play no part at all in hiring, except "negatively", i.e. nobody should be in principle excluded because of race, gender etc.* (But nobody should be hired MAINLY/ONLY because of race, gender, etc)
Do you think there should be 3 whites in the US 4x100 relay team because this would reflect the demographical diversity best? Or rather have 4 blacks because the four (or probably rather 10) fastest happen to be black?


*This may lead to some de facto exclusions. Because of gender differences certain physically very demanding positions will likely have no females if a reasonable prerequisite is 10 pullups or so.

 

[JTS]

So, taking the most obvious example of "recrutiment by ability alone", the VPO was totally justified in not having any women in its ranks until the recent past (1997)?

Only if they're no good enough women players in Vienna at the time. Otherwise it was discriminatory. I noticed John Eliot Gardiner conducting an orchestra at the Proms in which the bias was heavily female. Do you think he was being discriminatory against the male sex? Or were the players picked on ability alone? Interesting when somebody forms a women only orchestra or an ethnic minority orchestra no one objects. I'm not saying this is a bad thing at all but it does raise the question of just how far diversity goes

 

[JTS]

Yes, diversity should play no part at all in hiring, except "negatively", i.e. nobody should be in principle excluded because of race, gender etc.* (But nobody should be hired MAINLY/ONLY because of race, gender, etc)
Do you think there should be 3 whites in the US 4x100 relay team because this would reflect the demographical diversity best? Or rather have 4 blacks because the four (or probably rather 10) fastest happen to be black?

*This may lead to some de facto exclusions. Because of gender differences certain physically very demanding positions will likely have no females if a reasonable prerequisite is 10 pullups or so.

This is obviously the point with all this diversity dogma. It can be carried to the point where it can be nonsense. When apartheid ended in South Africa there was a requirement of the South African rugby team had a quota of black players. The result was that the standard of the team took a nose dive simply because rugby was a white man's sport and most of the black community played soccer. This was abandoned for the sake of standards and now things have tended to even themselves out with the black captain of the team. Which is of course a very good thing because sport should be racially inclusive

 

[Forster]

Yes, diversity should play no part at all in hiring, except "negatively", i.e. nobody should be in principle excluded because of race, gender etc.*

Only if they're no good enough women players in Vienna at the time. Otherwise it was discriminatory.

Which is of course a very good thing because sport should be racially inclusive

So, all in all, "diversity" should play some part.

This is obviously the point with all this diversity dogma.

Well, I'm sure you can find examples of "diversity dogma". But you can also find examples of intolerance of genuine notions of diversity. Who's to say which?

I'm quite sure no-one here would actually want women, or ethnic minorities barred from orchestras, but some seem willing to jump on an "anti-woke" band wagon without really giving any thought to the complexities.

Music seems to me a particularly good example of the difficulty of deciding who should be recruited to an orchestra, because of the challenge of determining who is, actually, a better player. Take, for example, these vacancies:

https://www.berliner-philharmoniker.de/en/vacant-positions/

It's reasonable to assume that the BPO will get more applicants than there are places available, and that several will be suitably qualified - ie, they are excellent players. Now, I don't know what policy is in Germany regarding equal opportunities, or what recruitment policy is at the BPO, but I don't doubt that those responsible for making the selections will be well aware that they need to have taken diversity issues into account at some point in the process in order to ensure that not only have they appointed the best musician, but that their processes and decisions have not inadvertently or deliberately discriminated against applicants who meet one of the relevant characteristics. The LSO isn't recruiting at the mo, but they do have this statement on their website:

As an equal opportunities employer, the LSO is committed to the equal treatment of all current and prospective employees and does not condone discrimination on the basis of age, disability, sex, sexual orientation, pregnancy and maternity, race or ethnicity, religion or belief, gender identity, or marriage and civil partnership.

We aspire to have a diverse and inclusive workplace and strongly encourage suitably qualified applicants from a wide range of backgrounds to apply and join the LSO.

I'm sure the BPO will operate in a similar way. So, is this "diversity dogma"? Or appropriate recruitment policy?

 

[JTS]

So, all in all, "diversity" should play some part.

Well, I'm sure you can find examples of "diversity dogma". But you can also find examples of intolerance of genuine notions of diversity. Who's to say which?

I'm quite sure no-one here would actually want women, or ethnic minorities barred from orchestras, but some seem willing to jump on an "anti-woke" band wagon without really giving any thought to the complexities.

Music seems to me a particularly good example of the difficulty of deciding who should be recruited to an orchestra, because of the challenge of determining who is, actually, a better player. Take, for example, these vacancies:

https://www.berliner-philharmoniker.de/en/vacant-positions/

It's reasonable to assume that the BPO will get more applicants than there are places available, and that several will be suitably qualified - ie, they are excellent players. Now, I don't know what policy is in Germany regarding equal opportunities, or what recruitment policy is at the BPO, but I don't doubt that those responsible for making the selections will be well aware that they need to have taken diversity issues into account at some point in the process in order to ensure that not only have they appointed the best musician, but that their processes and decisions have not inadvertently or deliberately discriminated against applicants who meet one of the relevant characteristics. The LSO isn't recruiting at the mo, but they do have this statement on their website:

I'm sure the BPO will operate in a similar way. So, is this "diversity dogma"? Or appropriate recruitment policy?

Diversity dogma comes when diversity becomes an end in itself regardless of musicianship.

 

[eljr]

So, taking the most obvious example of "recrutiment by ability alone", the VPO was totally justified in not having any women in its ranks until the recent past (1997)?

maybe it is best that all white men be flogged, maybe that would help to atone for how sociaty naturally evolved?

 

[Forster]

maybe it is best that all white men be flogged, maybe that would help to atone for how sociaty naturally evolved?

What on earth has your daft suggestion got to do with my post, and what has society's evolution got to do with the VPO's former policy of not recruiting women to the orchestra?

 

[Forster]

Prompted by the recent moves to sanction Gergiev and Netrebko, I wondered whether anything more came of this story.

Do we know whether any of the "sacked" musicians took the ETO to tribunal for unfair dismissal? If so, were they successful, or are we awaiting an outcome?