The coronavirus pandemic is having an impact on events and employment opportunities in the Finnish music industry. Whether performers receive compensation for a cancelled gig or whether such compensation is excluded under a force majeure clause depends on the contractual relationship.
Cancelled gigs and force majeure
As a rule, force majeure provisions apply* if an event is cancelled as a result of a decision taken by the regional state administrative agency. Up-to-date information on gathering restrictions can be found here >.
*Ultimately, it is up to a court of law to determine whether force majeure provisions apply to an individual contract, if the parties disagree on this point. As only an unforeseen event can be considered as force majeure, COVID-19 cannot be invoked force majeure in the case of new contracts.
FAQ – Cancelled gigs and circumstances preventing the performance of work
My gig was cancelled because the public event was forbidden by an administrative order. Am I entitled to pay or other compensation?
It depends on your contractual relationship. As a salaried employee (työsuhteinen työntekijä), you are entitled to 14 days’ pay if you are prevented from working for reasons beyond the control of both you and your employer. Such a situation arises because of the coronavirus pandemic when performances at the workplace are forbidden by an administrative order. Working and gathering at the working place f. ex. rehearsals have not been prevented by official regulations, but public gatherings, e.g. concert situations are limited. However, to be entitled to pay when prevented from working, the employee should have been at the employer’s service. If a given work shift/gig has not been cancelled in advance, the employee should be at the employer’s service up to the time of cancellation.
If you are not a salaried employee, your right to receive pay will depend on the terms and conditions of your contract and will be assessed on a case-by-case basis. As a rule, the force majeure provisions of your contract will apply. An administrative order issued by the Finnish authorities relating to an event, venue or location may constitute a force majeure applicable to both parties that excludes liability for damages that would otherwise apply if the order was unforeseen at the time of conclusion of the contract. Force majeure circumstances can be invoked even if the contract did not contain a specific provision on this. If the event causing cancellation had been foreseeable at the time the contract was concluded, there would be no force majeure in such case.
How is the salaried employee’s right to 14 days’ pay interpreted?
As a salaried employee (työsuhteinen työntekijä), you are entitled to 14 days’ pay if you are prevented from working for reasons beyond the control of both you and your employer. In other words, you must have been completely prevented from performing your work. The calculation of the period starts from the first day of the prevention. The matter should be reviewed on an employee-by-employee basis.
The provisions of chapter 2, section 12(2) of the Employment Contracts Act is mandatory.
Hence, the salary payment obligation is non-negotiable and cannot be altered by invoking the collective labour agreement or employment contract. Employers cannot circumvent the salary payment obligation by laying off the employees who are prevented from working.
My gig was cancelled by the party who engaged me “just to be on the safe side” without any administrative order being issued, and I’ve now lost out on work that had already been agreed upon. Am I entitled to pay? What should I do?
The answer to this question depends on whether you entered into the contract as an employee or as a self-employed person and what is agreed in the contract for cancellation. The starting point is always that a binding contract cannot be cancelled except under force majeure circumstances. If the work has not been prevented in accordance with the Employment Contracts Act for a reason independent of the employer and the employee and the official order has not prevented the show, the employer or client is in principle obliged to pay the remuneration in dull in accordance with the contract. In case of any disagreement on compensation with your contracting party, contact the Union. All force majeure situations should be assessed on a case-by-case basis.
If my tour is cancelled, who is responsible for the costs not included in the compensation for the lost gigs? Such costs include visas, flights and car hire, all of them substantial expenses.
The first question concerning the cancellation of the tour is whether you were engaged to work on the tour as an employee or a self-employed person and who is your contracting party.
Let’s assume that you were going to be working on this tour on a self-employed basis and had planned to invoice the local organisers for your work performance. This means that you were engaged by the organisers directly. Under such circumstances, the first thing is to determine whether there has been a valid reason for the cancellation, for example a force majeure event arising as a result of an administrative order. If not, you can claim compensation from your contracting party – provided that cancellation is not permitted under the contract, either. In reality, many musicians are not likely to claim compensation from their contracting parties, given the circumstances. Legally, you would be within your rights to do so.
If the cancellation is valid and lawful under the terms of your contract with the organiser and the cancellation has been done in compliance with your contract and the force majeure provisions, you cannot claim compensation from the other party.
The Finnish Musicians’ Union does not offer a membership benefit or an insurance policy that would cover the loss of earnings in an employment or engagement relationship (the exception being the sickness allowance paid by Musicians’ Sickness Insurance Fund under certain circumstances). Certain types of loss and damage related to leisure travel are covered by the Union’s insurance with If. Hence, any insurance policy covering occupation-related loss and damage should be taken out by the musician him- or herself or their contracting party. You could contact the event organiser to find out whether their insurance policy covers the costs incurred.
At least the biggest booking agencies have insurance policies in case artists fall ill – after all, the agencies may incur liability for damages in respect of organisers, musicians and other contracting parties. §Insurance providers will rarely, if ever, cover any costs arising from force majeure events.
If you end up paying the costs yourself, you can claim them as deductions in your taxation. If you are facing serious financial hardships as a result of the cancellation of the tour and belong to an unemployment fund, contact the fund directly. It is also advisable check whether airline and car hire companies have revised their cancellation and other terms in response to the emergency conditions. Finnair, for one, allows all customers to change their reservations subject to certain conditions.
Furthermore, in an employment relationship, a flight ban or other travel restriction imposed by the authorities preventing the return to work while on a trip abroad ordered by the employer, is deemed to constitute force majeure circumstances from the employee’s point of view. If the trip is called off, your employer will be responsible for covering any additional cost of accommodation, etc., and pay your salary normally for the duration of such force majeure circumstances. If you are travelling in a private capacity (on holiday), you will not be entitled to pay, but your absence from work will be deemed justifiable.
In other words, the measures taken by the authorities do not automatically mean that you have been prevented from working for reasons that are beyond the control of you and your employer, if the circumstances preventing the performance of work have not affected your workplace directly.