Jackson’s employment law fibs

Written By: - Date published: 7:59 am, September 29th, 2010 - 18 comments
Categories: employment, workers' rights - Tags: ,

Peter Jackson is now claiming that film workers can’t be represented by a union because they can’t be employees.

According to today’s Dom Post:

Jackson has said MEAA wants a union-negotiated collective agreement covering all performers. Yesterday he told The Dominion Post a collective contract was “absolutely not” being considered and would be illegal under New Zealand law because actors here are self-employed contractors, not employees as in Australia.

If film crews were hired as employees, with a contractual promise of ongoing employment, there would be no film industry, he said. “It’s an industry built on short-term work opportunities, with a finite time limit.”

That’s simply untrue. There are plenty of provisions to employ workers on fixed-term employment agreements. It happens all the time when people are employed to cover maternity leave or for seasonal work such as fruit-picking or freezing works work. There just needs to be a legal reason. And a project with a limited duration is a perfectly legal reason.

So the question is why make workers independent contractors when they could be fixed-term employees?

That’s a question Daveo answered quite well in a comment yesterday:

When the MEAA talk about the New Zealand contract they are talking about the situation where people that would usually be employees covered by employment law (minimum wage, right to challenge dismissal etc) are hired as “independent contractors”.

Independent contractors are considered to be one-person businesses engaged in a contract with the producers. the relationship is similar to that you might have with a plumber you call in to fix a leak – you’re not the employer, rather you get a quote for the whole job and then they do it for that price and if you’re not happy with the job you break the contract.

This means the employment relationship is considered to be a contract that falls under the commerce act rather than under employment law.

This may be a suitable circumstance for hiring a plumber (in which both parties have similar negotiating power when the contract is created, such as you and your plumber) but there is no way an individual film worker has the ability to negotiate a fair contract with a multi-million dollar producer in that the cost of losing the contract for the worker is significantly greater than the cost of not hiring that individual worker is to the producer (the former risks losing their livelihood the other only risks having to find another contractor).

As such many film workers in the small NZ film market end up working contracts that would be below legal minimum standards if they were deemed employment agreements but don’t have employment law to protect them.

A union draws together the negotiating power of individual workers (and, in this case, international stars) to provide a balance to the power of the producers in order to achieve a more balanced outcome in the form of a collective agreement. In short, the union members’ risk is still the loss of their livelyhood but so too is the producers as there are no other “contractors” to do the work.

What we are seeing here is Peter Jackson and other film producers trying to stop this collective process because it threatens their monopoly on bargaining power.

Jackson’s misrepresentation of employment law is being echoed by many employers in the film industry. It’s disgraceful that after years of pushing their workforce into contracting they are now claiming their hands are tied by the very situation they’ve engineered. But then again the first instinct of all bullies is to blame their victims.

18 comments on “Jackson’s employment law fibs ”

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  1. The Voice of Reason 1
    29 September 2010 at 9:53 am

    Spot on, Irish (and Daveo). As I said on an earlier post, Jackson has made significant money from the residuals that accrue after a film has had it’s first run in cinemas and then goes onto DVD sales and TV showings. This is where the real coin is and this is what he is denying kiwi actors by refusing to negotiate with them. The accusations of bullying are laughable, when it is he and his fellow millionaires that are refusing to do the right thing by talking with their employees.

    I also spot some hypocracy in his xenophobic attack on the Aussie union while claiming to be a loyal member of three unions himself. All three are based overseas, so why does he have a problem with an Australian based organisation?

  2. Olwyn 2
    29 September 2010 at 10:12 am

    This morning’s Herald has quite an insightful editorial on this subject, which draws attention to a situation which has implications that go beyond the film industry.

    http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10676744

    Peter Jackson’s conflict with the unions opens up a conversation which has generally been pushed into the background for the past 20 years. While the so-called open economy was sold to us as a vehicle for turning us into the Switzerland of the South Pacific, its actual tendency is to turn most of us into a nation of English-speaking, educated paupers. Just the sort of people you want for getting things done on the cheap. While this state of affairs persists, it is nonsense to talk about catching up with Australia or anywhere else from a positive perspective. Instead we are moving in the right (down hill) direction to eventually catch up with Somalia.

    • Draco T Bastard 2.1
      29 September 2010 at 1:27 pm

      And that’s the reason why I say that for the “free-market” to work all the rules everywhere need to be the same. Until that happens all it is is a race to the bottom for most, including countries, as the rich get richer.

  3. Supermaorifella 3
    29 September 2010 at 11:07 am

    Interesting post on public address:

    http://publicaddress.net/6867#post6867

    A lot more info on the issue.

    In regards to the “real coin” TVOR mentioned, why should any of the crew or the actors get any of it? The only reasons I can think of are their name has that much pulling power for the box office or they are snart enough to negotiate for it? Jack Nicholson has done it (Batman), I think for a reduced wage he got 5% of the gross and all royalties re: merchandise / spin offs. George Lucas did it against the studio for Star Wars and made his empire (no pun intended) with it.
    A fair bit of bad press coming out about the MEAA, and the fact that they are not able to negotiate for members of the industry despite their bleating. Why have they become deregistered with the MED?

    • The Voice of Reason 3.1
      29 September 2010 at 11:47 am

      They should get the SAG payment structure, if not the actual Hollywood pay rates, because that’s the international standard. As a member of that union, Jackson gets it, so why shouldn’t his crew?

      The pay structure and residual payments is to allow for all workers in the industry to get a fair, if modest, income from their work. It’s not dissimilar from arrangements in sport, where the big clubs pass on a share of their TV income to maintain lower leagues. The big stars such as Nicholson or Jackson will always have the clout to negotiate their own deal, as you suggest. But the majority of workers in the industry rely on union negotiated standards to maintain their income. In fact, SAG and the Screenwriters have had industrail disputes in the States in recent years on exactly these matters. Why should Jackson ne allowed to bully his way out of an arrangement as an employer, that he personally benefits from as an employee?

      • Supermaorifella 3.1.1
        29 September 2010 at 12:30 pm

        I agree that there should be a collective fixed term contract for the majority of the crew on a set. I do think this would have to be negotiated on a case by case basis however, the scale of the production and budgets vary so greatly. I don’t think that ANY member of the cast and crew, unless they have key skills or abilities that are vital to the film’s production or box office gross, should be entitled to any of the post-prduction profits or royalties, and these would have to be negotiated on an individual basis. It’s the studio and producers that fund a film, they should reap the profits (or suffer the losses) from that risk. The crew and actors are fulfilling an employment obilgation, for hich they are being paid.
        The disagreements between what an overseas person and their NZ equivalent get paid are…complex, and not confined to the movie industry. But regarding the movie industry, we still have a rather fledgling set-up here, and one of our points of difference has always been production cost compared to the US or the UK (or even closer to home, Australia). While I don’t think ANY employee on set should be shafted with low pay or dodgy employment conditions, would those employed rather the productions did go overseas, to Eastern Europe, or Bollywood, or somewhere else? Surely keeping the industry moving forward and gaining more power internationally is a long-term outcome beneficial to all in the end?
        Again, anyone have any idea why Actors Equity/MEAA have let their registration lapse with MED? Demanding negotiating rights without the legal right to represent those you’re squawking about is farcical.

        • Draco T Bastard 3.1.1.1
          29 September 2010 at 2:45 pm

          Just another RWNJ as indicated by:
          1.) the name and
          2.) The attitude that the peasants should just do as they’re told and be thankful to the rich for stealing from them

          • Supermaorifella 3.1.1.1.1
            29 September 2010 at 3:32 pm

            Draco, stick your class-war rhetoric up your arse mate. Stealing from them? If they truly want a “collective” film produced, why don’t the hard-done by employees of the production negotiate for minimum wage with a share of the profits depending on their level of involvement and expertise? A cameraman to get more than a rigger, an editor more than a cameraman, the scarcity of the skill dictating the level of eventual payment (dependent on the success of the movie of course). The director, producer/s, and studio would still get the lions share obviously, because they provided the most scarce item to the production, money to fund the bloody thing.
            AND get the union supposedly negotiating for you to be a legally recognised entity that CAN actually bargain for you, whether that be in good faith or bad.
            Maybe they could all have cabbage soup and sing praise to Lenin while they all work as well.

            • Draco T Bastard 3.1.1.1.1.1
              29 September 2010 at 3:45 pm

              No, the people who supplied the money should get their money back and no more. Getting more than their money back is stealing from those who actually created the wealth.

              Profit is a deadweight loss.

              • Supermaorifella …
                29 September 2010 at 4:09 pm

                If you don’t mind me asking, in all seriousness, do you really believe that? I’d disagree, but if you do actually believe that and are not just spouting some leftist propaganda you’ve read in a history class then fair play. The utopian ideal where everyone gets along and has all they need (even if not all they want) is a worthwhile goal, even if the people that espouse such ideas are generally just millenarians dressed in secular clothing awaiting their particular beliefs version of the second coming.
                No disrespect intended Draco, if that is your actual belief. Perhaps the world would be a nicer place if more people thought like you. Unfortunately, I’m going back to reality (work) right now.

                • Draco T Bastard …
                  29 September 2010 at 5:46 pm

                  It’s not a belief but actual fact. Even the simplistic neo-liberal supply and demand theory shows that profit is a deadweight loss. The person who supplies money has done nothing to justify having anything more than their money returned. To do that they’d actually have to work.

                  I’m going back to reality (work) right now.

                  The “reality” that you’re going back to is the delusion that has been forced upon us by the capitalists for their own benefit.

              • Vicky32 …
                29 September 2010 at 5:43 pm

                Yes, I agree!
                Deb

  4. grumpy 4
    29 September 2010 at 11:20 am

    The problem is that NZ is a low cost labour market. Even Labour (the worker’s friend) exacerbated that with “Working For Families” which was a taxpayer subsidy for employers to continue paying low rates.
    Just as farmers, forestry owners, fishing companies all sell low cost, non value added products overseas, it appears our film industry relies on low wages for it’s “success”.
    Who cares if Jackson makes his movie offshore? It’s way overdue that workers gave up being conned and ripped off.

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