Australian production companies may have to pay millions in alleged unpaid super after ATO ruling
The Australian Writers Guild (AWG) is gearing up for a challenge against Screen Producers Australia (SPA), after a ruling by the Australian Tax Office last December found that screenwriters in most cases were providing a service to an employer, not selling a product, and therefore must be paid super.
The ruling, which was in line with the Superannuation Guarantee Act, means that for long-running television shows, decades of super backpay could apply, although the statute of limitations for an individual employee in Australia is six years.
Both parties are now seeking legal advice, while the AWG said it has not ruled out a class action or a strike to challenge what it describes as SPA's 'legally dubious' position.
The 2023 screenwriters strike in the US lasted 148 days and after the actors union Sag-Aftra joined the strike, film production in Hollywood and abroad – including some shoots in Australia – was stalled for months.
That strike was largely about unfair compensation and the unchecked use of AI.
The AWG is a guild, not a union, and therefore is under no legally binding obligation to seek protected action. While the Australian guild's chief executive, Claire Pullen, said the possibility of a wildcat strike further down the road had not been ruled out, she was acutely aware of the financial stress this would place its members under.
Screenwriter Peter Mattessi, the president of the guild, said many Australian production houses continue to treat legally mandated employer contributions as optional extras in industry contracts.
'It's not negotiable. You're not bartering over a clause in a contract,' said Mattessi, a writer on EastEnders, Return to Paradise and The Heights.
'This is legislation. It's meant to protect workers. Yet some producers treat it like it's an option … it's as though legal compliance is discretionary.
'It's not just a contract quirk – it's sustained denial and it amounts to wage theft.'
Mattessi said earlier in his career he had written for Neighbours, produced by Fremantle, and Home and Away, produced by Seven Productions, and alleged neither company had paid super to their writers.
The Guardian is aware of at least two former scriptwriters on Home and Away who took their complaints to the ATO, which ruled in the writers' favour.
But the AWG said it was not reasonable to expect every screenwriter in the country to individually apply to the ATO to assert their superannuation rights.
'Our members are engaged in such a precarious way as it is, contract to contract,' Pullen said. 'If it's put to you as a choice between enforcing your right to superannuation or not getting the job, it's pretty obvious which choice creative workers are going to make.'
Attempts to convince the ATO that it needed to tackle industry-wide non-compliance had hit a bureaucratic roadblock, she said.
'Essentially, what we got back from the ATO was: 'if any individual wants to raise a matter, we'll look into it'. But they won't deal with systemic non-compliance.'
In information circulated by SPA to its members last year (Fremantle is a SPA member but Seven Productions is not), it advised that while some services from scriptwriters do attract super, standard contracts show that writers who are commissioned to write a script are paid for the acquisition of their intellectual property rights of that work.
'The fee is not paying for services; the fee is paying for the assignment of copyright and various usage of the work,' the advice said.
In a statement provided to the Guardian, SPA's chief executive, Matthew Deaner, said:
'While we can't comment on any specific matter, nor has this issue been formally raised by the writers guild, we note that the industry framework agreements with the guild envisage writers being paid under different fee types depending on what has been contracted. Superannuation obligations are then determined in accordance with the relevant legislation.'
The Superannuation Act states that 'who is paid to perform services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast is an employee of the person liable to make the payment.'
The AWG argues this includes film and television scriptwriters, and in a December 2024 clarifying ruling, the ATO went on to emphasise 'a person engaged to write a script is performing services', and therefore owed super – as opposed to a writer who takes their existing script to a producer who buys it, in which case 'they are merely selling property.'
An ATO spokesperson said application of the relevant subsection of the act needed to be made on a payment-by-payment basisand its review and audit program into the non-payment of super did enable it to focus on 'particular industries or employer groups as part of their compliance actions'.
The assistant treasurer, Fremantle and Seven Productions have not responded to the Guardian.
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