Q. What were the actors asking for?
A. Actors in NZ are usually employed as independent contractors. They have a set of guidelines (The Pink Book) which set out the standard conditions for the employment of actors, but this is a guideline only and not enforceable.
Actor’s Equity have outlined the following areas as causes of concern: minimum fees, conditions of engagement, professional protections and residuals.
In lay terms, there is no minimum that you can pay a NZ actor and no minimum working conditions. A contract can be terminated at any time with no obligation to pay out the contract. ‘Residuals’ are a bit like royalties – they are payments to someone for their work when it is used again after the original showing (such as releasing a movie on DVD).
For the most part, the Kiwi industry is made up of low-budget, no-budget and modest-budget productions, so these conventions have worked for actors for some time. But things are changing. Big budget international productions have been filming more and more in NZ – examples being LOTR, The Last Samurai, Spartacus and The Chronicles of Narnia: The Lion, the Witch and the Wardrobe.
It’s not so acceptable for these large budget productions to play by the same rules as a modest-budget Kiwi production. Especially when they employ international actors on much better conditions to do similar work on the same production.
Actor’s Equity wanted to address these issues with the makers of The Hobbit. The producers came out saying that the union was not registered in NZ and that contractors can’t bargain collectively. That didn’t need to be an obstacle however.
From Actor’s Equity on 1 October 2010 below:
“Advice we have received today from Miriam Dean QC, a senior barrister specialising in competition law, confirms our views that:
• “There’s no legal impediment to negotiating fair wages and terms for actors taken on as employees.
• “Nothing in the Act prohibits us from having some meaningful engagement with the producers on non-price terms for actors taken on as independent contractors, such as rolling credits to acknowledge New Zealand actors’ input into the movie.
• “Nor does the Act prohibit us from discussing pricing in general terms with the producers to enable us to help our independent contractor members in their individual negotiations with producers. The Union accepts that these could only be recommended prices – nothing more.”
The union accepted that there would be no formal collective agreement bargained by the union. As they point out, there is nothing in the law to stop the union having a meeting with the producers to argue their piece and have the producers voluntarily offer improved conditions to the actors.
Q. How did it all go so wrong?
A. The first approaches to the producers appear to have been through FIA (The International Federation of Actors) an international collective of actor’s collectives from around the world. The letters they sent to the production company do demand a union-negotiated collective agreement or a blacklist will apply. These demands don’t sit easily with NZ’s situation, where most actors are contractors and are not allowed to bargain collectively. What FIA was asking for seems to have been nothing short of bringing NZ fully into line with the situation in other countries, where film industry work is highly unionized.
However, if the producers had discussed the situation with the union, then the issues could have been clarified and worked through a lot earlier.
Q. Was the dispute ever a credible threat to the production going ahead?
A. In the early stages, yes. The support of international unions including the US Screen Actors Guild for the blacklisting meant that the dispute could have halted the production of The Hobbit.
However, the international blacklist has been lifted. Actor’s Equity have resolved their dispute and have guaranteed that no further industrial action will disrupt The Hobbit.
There seemed to be an agreement between Warner Bros and Actor’s Equity that it was all settled, until Peter Jackson announced that the studio was thinking of moving the production overseas due to the now-settled dispute.
Q. How scared could Warner Bros really be of a small Kiwi union?
A. Warner Bros has been engaged in industrial action with much bigger, scarier unions than NZ. The most recent major action being the Writer’s Guild strike in America in 2008, which was also about residuals.
These are some of the other major strikes engaged in by the US film industry:
• 2000 Commercial actors strike, almost six months.
• 1988 Writers Guild of America strike, 22 weeks.
• 1987 Directors strike, 3 hours and 5 minutes.
• 1985 Writers strike, two weeks.
• 1981 Writers Guild of America strike, three months.
• 1980 Actors strike, three months.
• 1960 Actors strike, led by SAG President Ronald Reagan, six weeks.
• 1952 Actors strike, two and a half months.
• 1945 Set decorators Hollywood Black Friday strike, six months.
• 1942–44 Musicians’ strike, thirteen months plus.
• 1941 Disney animators’ strike, five weeks.
During the Writer’s Guild strike, the financial impact on the studios of accepting the writer’s demands was assessed as ‘negligible’ and that the studios were afraid that a settlement would ‘embolden directors and actors in their coming renegotiations’.
The American alliance of producers, AMPTP used the following strategy:
“Fabiani & Lehane’s strategy appeared to be to try to weaken the WGA membership’s resolve and foment resentment and doubt regarding WGA leadership within its ranks and in the film industry at large, especially with below-the-line workers [technical crew], by framing the strike as “havoc… wreaked… by the WGA’s actions” (paraphrased) and by blaming the WGA for “start[ing] this strike”.”
A major difference in the WGA strike appears to be that the public actually supported the writers, rather than the studios:
“One national survey conducted by Pepperdine University from November 7 to November 9 found that…nearly two-thirds of the sample sided with the writers, one third was unsure, and only four percent sympathized with the AMPTP (1,000 American adults participated). A second regional poll conducted by SurveyUSA on November 11 of Los Angeles residents indicated that eight percent supported the studios with sixty-nine percent supporting the writers (550 American adults participated, with 482 identifying themselves as being familiar with the strike).”
Q. Was the Warner Bros decision to consider other locations the result of the NZ actor’s industrial action?
A. The issues that Warner Bros took to the NZ Govt appear to have been the following:
* Clarification over the Bryson case – where a contractor successfully claimed to have actually been an employee and entitled to the protections given to employees.
* The appreciation of the NZ dollar against the US dollar, which makes it more expensive to film in NZ
* The size of the tax breaks given by the Government to big budget film productions.
The first point is only tangentially relevant to the Actor’s Equity dispute, and the other two points are completely unrelated.
Q. Did the actor’s industrial dispute give Warner Bros an opportunity they wouldn’t otherwise have had to renegotiate tax breaks?
A. Warner Bros could already have been agitating behind the scenes for increased tax breaks, but the actor’s industrial dispute unquestionably gave them the opportunity to increase their leverage by threatening to leave NZ if they didn’t get what they wanted.
However, the actors cannot be blamed for this. Warner Bros exploiting them to gain an advantage is not their fault.