A couple of points about the Hobbit dispute

Written By: - Date published: 9:26 pm, October 4th, 2010 - 62 comments
Categories: workers' rights - Tags: , ,

Actors Equity have posted their Australian counterparts minimum standards document.

Some of the outrageous clauses that would surely cripple the industry here include:

The Producer or his/her representative may not direct the Artist to smoke or appear to be smoking except where such a request has been previously discussed with the Artist and expressly stated in the Artist’s contract or the separate written consent of the Artist has been obtained, and the Producer may not, for publicity purposes use stills of the Artist appearing in such scenes.

and

Where the Artist is required to make him/herself available for publicity and/or promotion work outside his/her normal working hours s/he shall be paid at the rate of the BNF with a minimum Call of two and one half hours.

and

(a) The ordinary hours of work shall be based on eight hours per day exclusive of a meal break to be worked continuously between the hours of 6.30am and 11.00pm on five days of the week Monday to Saturday.
(b) All meal breaks other than tea breaks shall be in the Artist’s time. Tea breaks shall be counted as time worked.

There’s plenty more pretty basic stuff in there and I’d recommend you take a look. If this is the kind of stuff Actors Equity is after then it seems pretty odd that the producers were so dead set against meeting. I’ve heard the argument that that’s all in the pink book but the deal with the pink book is is sets guidelines. There’s not a legal or enforceable clause in the whole thing. It’s kind of like letting workers have input to company policy that is applied entirely at their managers’ discretion.

While we’re on the topic, I’d like to point out that it is truly astounding that John Key has offered to get involved in this dispute. Especially after his Minister for the Arts basically sided with the employer. I can’t imagine how worked up the right would have got if Helen Clark had offered to intervene in an industrial dispute after implicitly backing the union involved.

In fact just last year the Prime Minister was asked about the government’s involvement in the Telecom/EPMU dispute which concerned a significantly more important matter than a single film – the terms and conditions of hundreds of telco lines workers. He answered (via Tony Ryall):

The Prime Minister is advised that this is an issue of contracts between private companies, and it is not appropriate for the Government to intervene.

So Key seems to think that hundreds of skilled telco workers getting their livelihoods ripped off them in a way that endangers our telecommunications infrastructure is an issue of contracts between private companies but he needs to step in when a few actors dare to ask for some basic minimum standards?

What a disgrace.

62 comments on “A couple of points about the Hobbit dispute ”

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  1. BLiP 1
    4 October 2010 at 10:29 pm

    Can’t have the CTU taking a lead on this, can we? No, of course not. Especially when there’s such public interest in seeing a positive outcome. Watch as John Key strolls along and, hey presto, its all solved. Trouble is, we’ll never know what went down in the Beehive. What’s another billion dollars of other people’s money to him?

    • Colonial Viper 1.1
      4 October 2010 at 11:20 pm

      The Government’s offered to mediate? After Finlayson reassured PJ and the big corporates that they could go as hard as they liked against the workers’ union by keeping players on as contractors?

      Bwhahahaha.

      • tea 1.1.1
        4 October 2010 at 11:42 pm

        am I not allowed to laugh but call them the fucktards that they are?

        Their amorality is scary…

    • BigSigh 1.2
      5 October 2010 at 8:58 am

      Yep, that is what it looks like. I got momentarily hopeful of a good outcome when I saw the CTU was getting involved, but now Key has stolen the march on the unions, and unfortunately the bad taste left in the average non-unionised Kiwi’s mouth by the AE/MEAAs approach and coverage won’t be cleanly washed away. It can only be good for National.

      It’s amazing how this party can chop and change like this, say one thing to one group, another to a different group. Have one principal on Monday, follow a different one on Thursday. And noone in this country seems to mind so long as when they’re the ones being spoken to they’re hearing the words they want to, nevermind what Key and Co. tell another group tomorrow.

      Be interesting to see what tax cuts are on the offering to PJ and friends. (I guess PJ might have something to thank the unions for in the end.)

  2. Clint Heine 2
    4 October 2010 at 11:06 pm

    Will any actor in the Hobbit be required to smoke? 🙂

    • felix 2.1
      4 October 2010 at 11:12 pm

      Point?

    • Armchair Critic 2.2
      4 October 2010 at 11:22 pm

      Was any actor in Atlas Shrugged required to smoke?

    • The Voice of Reason 2.3
      4 October 2010 at 11:38 pm

      Um, before I fell asleep, I’m sure there were scenes in the LOTR where hobbits smoked pipes. So, yeah, maybe.

      • Colonial Viper 2.3.1
        5 October 2010 at 12:04 am

        Did you think that was real tobacco smoke? Come’on, with the magic of CGI, they could’ve been snorting crack cocaine against a blue screen and we couldn’t have told the difference.

        • NickS 2.3.1.1
          5 October 2010 at 12:10 pm

          Speaking as a video game nerd with a smattering to knowledge in graphics, realistic smoke is a nightmare to make real-time in a video game, even with directx11 hardware. CGI is a little easier, but given the drift towards HD video, and the rendering costs, it’s more cost-effective to get the actors to smoke than it is to add it in later.

  3. RedLogix 3
    4 October 2010 at 11:50 pm

    The other totally bizzare aspect of this case is that three Ministers of the Crown, including the PM have now all publically weighed …very openly… into a labour dispute.

    Since the time of Muldoon it has been the fairly strict practise of Ministers, of all govts, not to be seen openly taking sides in a labour dispute the Crown had no direct interest in. And even in the case they did, it would be pretty low-key.

    So what’s changed? There has been a major break with convention here.

    • Colonial Viper 3.1
      5 October 2010 at 12:06 am

      This should give you confidence that CERRA will be used properly and responsibly, no?

      Wow if National get in for a second term, I am guessing our world is really going to change. They can barely hold themselves back now.

  4. dave brown 4
    5 October 2010 at 12:02 am

    Only National can tell us what is in the National Interest.

  5. B 5
    5 October 2010 at 7:21 am

    Key & co have only got involved because they have prior knowledge of the result & want to take credit for it.

    • IrishBill 5.1
      5 October 2010 at 7:35 am

      Yeah, I suspect the same. Couldn’t let Helen Kelly and the CTU get the credit for their hard work on this. What a champ.

  6. Gosman 6
    5 October 2010 at 9:50 am

    Anybody listen to Phillipa Boyens on None to Noon on RNZ National yesterday?

    Seems quite clear that the Aussie Union is attempting to use this for publicity purposes and has been engaging in less than upfront tactics to do so.

    She also stated that this is far more serious than the Union realises as they seem to be interested in playing games over boycotts etc.

    • Tiger Mountain 6.1
      5 October 2010 at 11:01 am

      “You can take all the sincerity in Hollywood, place it in the navel of a fruit fly and still have room for three caraway seeds and a producer’s heart” –Fred Allen.

      Kind of how I feel about NZ Film producers at the moment.

  7. James 7
    5 October 2010 at 12:44 pm

    “There’s not a legal or enforceable clause in the whole thing.”

    So, Irishbill, tell me what’s legal or enforceable about what Actor’s Equity and the MEAA are trying to do instead of the pink book?

    If you can answer that you win the right to call yourself the person that solved this entire problem.

    • IrishBill 7.1
      5 October 2010 at 6:43 pm

      It’s legal for them to come to a minimum employment agreement with Jackson. It’s also legal for them to get him to offer a minimum standards contract that sits under all other contracts he offers. While the latter isn’t a document the union can sign on behalf of their members it can be done as an agreement offered by Jackson. Unless you’re arguing he can’t offer a uniform base-contract legally (in such a case just about every franchise contract in the country would be unlawful).

      • James 7.1.1
        5 October 2010 at 7:03 pm

        that minimum standards contract you’re describing wouldn’t be legally enforceable though.

        Even if he did it, the actors as independant contractors would then go ahead and sign their own contracts, which would have nothing to do with anything agreed with to the union in any legally enforceable way. Sure it could be a ‘guideline’ that the union could get snippy about if the production didn’t follow it. But it wouldn’t be legally enforceable.

        So what’s the difference between that and the pink book? Nothing.

        Now, if the union want to make their members negotiate as employees, rather than independent contractors, that’s a whole other matter. But they don’t, so that’s really the end of it.

        • IrishBill 7.1.1.1
          5 October 2010 at 7:22 pm

          If the the individual contractors signed the base contract in addition to their main contract, or if the base contract was integrated with the individual contracts they signed it would be completely legally enforceable.

          The same could be done with the pink book but, as I understand it (I haven’t seen a copy), is weighted toward the employer. I suspect the leverage supplied by the support of overseas unions gave the actors the idea that they could aim to put in a better, Hobbit specific, set of minimum standards.

          And fair enough too. This is business and business is about leverage. God knows employers in the film industry have been using their leverage to their advantage over the last two decades.

          • James 7.1.1.1.1
            5 October 2010 at 7:49 pm

            I think you can get a copy of the pink book online.

            “I suspect the leverage supplied by the support of overseas unions gave the actors the idea that they could aim to put in a better, Hobbit specific, set of minimum standards.”

            Well sure, but they wouldn’t be legally enforceable either.

            And besides which that’s what actor’s agents do anyway: negotiate the best possible deal for their clients.

            And that’s the problem everyone has: nobody is suggesting they don’t have the right to strike for leverage, or even that what they’re asking for is wrong. The problem is what they’re striking for, and putting the livelihood of so many other people’s jobs at stake for, not to mention their own members, is just a meaningless bit of paper that has no legal standing anyway. So why? Why would any reasonable union do that?

            Does it not speak volumes that none of the other unions are publicly supporting them? Perhaps it’s because they’re concerned about their own members losing their jobs for no good reason.

            • IrishBill 7.1.1.1.1.1
              5 October 2010 at 8:35 pm

              Well sure, but they wouldn’t be legally enforceable either.

              If Jackson is forced to offer them and they are accepted then they are legally binding and enforceable under contract law. That’s what the strike/boycott/whatever the hell it is is about.

              The nuclear option of the strike/boycott/whatever the hell it is is the only leverage that has been available to them. Two points about that fact:

              1/ There’s something wrong with employment law surrounding independent contracting if that’s the only option.

              2/ The behaviour of film industry employers must have been pretty bad if it has come to using this option.

              I think the fact that other unions have not come out in support of the actors has something to do with the shit job the union has done of running this dispute and communicating with the public and other unions. To be fair to them they’re a bunch of IR amateurs up against some IR pros that would have even the most organised and powerful unions in this country playing a very careful game but that does not alter the fact that they are having a shot at a fair go in an industry that is notorious for never offering a fair go.

            • The Voice of Reason 7.1.1.1.1.2
              5 October 2010 at 8:42 pm

              IB has already demonstrated that its perfectly possible to have a legally binding set of minimums here in NZ, let alone the fact that such things are the norm in the industry; at least the First World part of it. Or, gosh, the union members could just be hired as short term employees and get all the minimum protections by law, something most of the rest of us currently enjoy.

              If the Government felt like ending the dispute, they could even legislate to make such contractual arrangements specifically legal and that might keep crypto-legal pedants like yourself happy. They’ve rushed enough more significant things through the house under urgency, so why not?

              • IrishBill …
                5 October 2010 at 8:57 pm

                I’m just reading about the IHC business and have some concerns about what it may mean in terms of circumventing employment law. For a government that campaigned against “nanny state” they’re showing a concerning willingness to intervene in some employment matters.

                It’s one thing to run up anti-worker employment law in the plain light of day. It’s quite another to get involved at a hands-on level. I haven’t seen anything like it since the Muldoon days.

                • James …
                  5 October 2010 at 9:11 pm

                  “If Jackson is forced to offer them and they are accepted then they are legally binding and enforceable under contract law.”
                  Offer to WHO? The Union? The Actors? what the hell are you talking about?

                  • IrishBill …
                    5 October 2010 at 9:34 pm

                    The actors. It’s not a contract between the union and Jackson but a basic minimum standards contract offered to each actor individually by Jackson at the request of the union (which has the leverage) and signed by each actor individually. Such a situation would be a perfectly legal, if roundabout, answer to the situation under current law.

                    • James …
                      5 October 2010 at 11:19 pm

                      Which is exactly the kind of conditions that would make studios never want to invest money in new zealand film productions.

                      What say half way through the production the union decides it wants better contracts? Another boycott? the film shuts down, and millions of dollars are lost.

                      So the studios don’t invest, productions don’t get made, who loses? The actors. Great plan.

                    • IrishBill …
                      6 October 2010 at 7:35 am

                      Nope, once the contracts are signed they are signed. That’s the case for big stars just as much as bit-part actors. A withdrawal of labour in such a circumstance would be a breach of contract that could be dealt with under law and would probably involve significant costs for the actor involved and damage their reputation and thus their career.

                      As an example, Brando pulled a stunt like that while making Apocalypse Now and, although he got what he wanted, it was his last major film.

                      Have you ever actually been in business? Because you seem to have an odd idea of how contracting works.

  8. bobo 8
    5 October 2010 at 3:47 pm

    Ive not been following this debate closely but it seems to me the whole issue is being manufactured by Jackson as leverage to either get more tax credits from the gov or Jackson has made up his mind hes taking the filming overseas and needed a scapegoat to blame? Quite cunning of him if he gets more tax credits.

    • James 8.1
      5 October 2010 at 6:37 pm

      Yes, cunning of him to control the mind of the MEAA so they’d boycott this production and make legally impossible demands, all so he could take the production overseas, even though he doesn’t make that decision anyway – it’s actually the film studios that pay for it that decide where it goes, and he’d just blame the studios if he wanted to do some of the shooting overseas or wanted to get more tax credits.

      He’s not only an evil asshole who hates new zealand, and has complete control over the film studios AND the australian union, he’s also magical.

      You’ve really figured this one out. Well done.

  9. James 9
    6 October 2010 at 9:28 am

    Sorry, couldn’t do any more replies on the last thread.

    “Nope, once the contracts are signed they are signed. That’s the case for big stars just as much as bit-part actors. A withdrawal of labour in such a circumstance would be a breach of contract that could be dealt with under law and would probably involve significant costs for the actor involved and damage their reputation and thus their career.

    As an example, Brando pulled a stunt like that while making Apocalypse Now and, although he got what he wanted, it was his last major film.

    Have you ever actually been in business? Because you seem to have an odd idea of how contracting works.”

    Yes, I understand it very well.

    The point is that the studios will not invest until they are certain there is no more potential for union action. This normally happens by having a legally binding collective contract with the union. In this case it can’t happen here.

    Let me explain a scenerio:

    PJ does what you say, the initial round of contracts are signed, the union is happy with them. Fine. Then in six months, an overseas actor who is due to shoot some scenes says ‘sorry, can’t do it anymore’. Maybe they’ve had an accident and can’t work. Maybe the shoot has gone overtime and they’re not available anymore. Something that legally gets them out of their contract. Hell, maybe it’s just their agent has found them a better gig and they want to be released from their initial contract and take the penalty clause. Happens all the time.

    At any rate, it’s perfectly normal to sign a series of actors on contracts over the course of a production. Double so for a big film like this that’s going to go on for at least 2 years.

    So after 6 months, they decide it’s time to hire a new overseas SAG actor. Or hell, maybe just even a NZ actor.

    What say then the union decides they have more leverage now, and call on the boycott again, because they want better contracts for all the NZ actors due to sign more contracts in the next year and a half of shooting?

    So, the studio is completely held to ransom, because they’ve already invested 100 million and they may end up losing it. Does that sound like something they’d be keen to invest in? No.

    That’s the point.

    • IrishBill 9.1
      6 October 2010 at 11:35 am

      So you assume that big name overseas actors will act in bad faith to aid the union in personal boycotts despite the base contracts being signed. Then you assume the union would act in bad faith. You also assume that not having minimum standards is a guarantee of no further union action (I would have thought the reverse was true).

      You’re engaging in fantasy based on absurd prejudices. What’s you next scenario? A group of evil unionists seize control of Peter Jackson’s vintage plane collection and threaten to blow it up if ever actor is not delivered a gold bar fashioned in the shape of the word “union”?

      Frankly I doubt you have any experience in business and, if you do, you’re probably not very good at it.

      • James 9.1.1
        6 October 2010 at 11:47 am

        No, I assume the studios will not pump hundreds of millions of dollars into a production that the union could choose to boycott at any time, because there’s actually no legal way of signing a collective bargaining agreement with them that is legally enforceable FROM ALL SIDES.

        That’s the point of a collective bargaining agreement: the studio will feel comfortable that there will be no more unrest, because the minimum standards have been agreed by both sides and it’s legally binding.

        So let’s say PJ does this thing, the conversation with the studio will be:

        PJ: Hi, I sorted this union issue out.
        Studio: Great! So they can’t boycott the production anymore?
        PJ: Well, sort of. They promised not to.
        Studio: What? Haven’t you signed a binding agreement that if you agree to their minimum standards, they won’t boycott?
        PJ: Um, not exactly…
        Studio: Can we have our 200 million back?

        So you’re expecting them just to ‘trust’ the union won’t act in bad faith.

        Good luck.

        If you have a problem with that, sure, try to change the legislation (good luck again, by the way, now all this s**t has gone down and no politician will touch it with a 40 foot pole) But striking against Peter Jackson isn’t going to make a shred of difference except lead to the above conversation and get the film shut down.

        And then the actors lose.

        Okay, that’s as clear as I can possibly make it.

        But I’m going to assume you trying to characterise my argument in ridiculous hyperbole, and personal attacks, in order to tear it down is your way of saying ‘I can’t actually think of a sensible reply to that’, and leave it at that.

        • Pete 9.1.1.1
          6 October 2010 at 11:54 am

          your argument takes the naive and media induced assumption that PJ is the only one who will be negotiating with the actors, with the studios not being involved. PJ is but one of a number of producers, including 3ft7, New Line, MGM and Warners. All of these producers will be party to any negotiation…

          • James 9.1.1.1.1
            6 October 2010 at 12:05 pm

            The entirety of the actor’s equity demands are that they want to meet and negotiate with Peter Jackson.

            • Pete 9.1.1.1.1.1
              6 October 2010 at 12:09 pm

              the resolution passed by actors (member and non-members of NZAE) states

              “This meeting of New Zealand performers:

              1. Calls on the producers of The Hobbit to meet with representatives of the NZ Actors’ Equity to discuss the arrangements under which NZ Actors’ Equity will recommend performers work on the production The Hobbit,

              2. Calls on the producers of The Hobbit to have good faith negotiations with representatives of NZ Actors’ Equity concerning the arrangements pursuant to which NZ Actors’ Equity will recommend performers work on the production The Hobbit; and

              3. Recommends that all performers wait before accepting any engagement on the production of The Hobbit until the production has advised whether it will enter into good faith negotiations with NZ Actors’ Equity with respect to the minimum conditions of engagement under which NZ Actors’ Equity will recommend performers work on the production The Hobbit, including minimum fees, conditions of engagement, professional protections and residuals. If the production advises it will not enter into such good faith negotiations then NZ Actors’ Equity should make a further recommendation to performers on what action should be taken at that time before performers accept engagement of the production.”

              Note: PRODUCERS, PJ not mentioned except as implied by PRODUCERS.

            • James 9.1.1.1.1.2
              6 October 2010 at 12:16 pm

              [lprent: deleted on request. ]

              • James …
                6 October 2010 at 12:28 pm

                SORRY FOR THE DOUBLE POST, MY PARAGRAPHS WERE IN THE WRONG PLACE. PLEASE DELETE THE LAST ONE AND USE THIS INSTEAD, CHEERS
                [Done, but deleting the parent to this comment moved this comment out of the “reply” sequence. — r0b]

                Okay, let’s say we ignore the half a dozen media interviews and press statements where they’ve expicitly said ‘all we want to do is talk to Peter Jackson’ for one thing…

                But, good lord, even if they met with the Studios they’d be having the exact same conversation with the exact same problems: YOU CAN’T HAVE A LEGALLY BINDING COLLECTIVE AGREEMENT.

                Irishbill’s solution is laudable, in that it’s good to find a legally workable solution. But his one simply doesn’t work.

                No one has ever yet managed to come up with on that does, except doing something like the Pink Book which already exists and they’ve refused to negotiate on for almost 2 years because it’s not legally enforcable (when they have no actual alternative anyway). So WHAT THE HELL IS THIS BOYCOTT FOR?!

                Another Pink Book (that’s not legally enforceable) specifically for the hobbit, when they’re also saying they’re striking because the industry-wide Pink Book is useless (apparently because it’s not legally enforceable)? Seriously?

                • James …
                  6 October 2010 at 12:38 pm

                  Thanks r0b 🙂

                • lprent …
                  6 October 2010 at 1:03 pm

                  [Done, but deleting the parent to this comment moved this comment out of the “reply” sequence. — r0b]

                  Yeah, it is a problem with this tiered mode, also screws up the numbering. It is usually simpler to zap the message contents (even if you have to fetch it back out of the trash).

                  Update: fixed…

        • IrishBill 9.1.1.2
          6 October 2010 at 1:26 pm

          It is hyperbole. If the exceptionally low probability scenarios such as yours were enough to make or break a deal in a film company’s risk assessment then no productions would ever occur.

          Yes you trust the union will act in good faith. More importantly you trust that the individual stars who have provided the union with leverage and the members who direct the union will act in good faith. Just as these parties trust that producers won’t decide to breach every single contract and then fight it out in court (a scenario just as unlikely as yours). Without trust you can’t do business. Just as you can’t do business if your risk assessment is out of whack.

          And if we’re playing the assumption game I’m going to assume your descent into strawman scenarios means you’ve run out of rational ideas and decided to agree with me.

          • James 9.1.1.2.1
            6 October 2010 at 1:37 pm

            Dude, those are not straw man scenerios, those are everyday occurances in the film business. I mean, just in the first LOTR film an actor broke his contract and had to be replaced by Viggo Mortenson. If you don’t understand the way the film industry works, well that’s cool. There’s no need to feel stupid, but at least have the guts to admit there’s an area you might not be an expert on.

            “It is hyperbole. If the exceptionally low probability scenarios such as yours were enough to make or break a deal in a film company’s risk assessment then no productions would ever occur.”

            The difference is that outside NZ, Actor’s Unions sign legally enforceable collective agreements. That’s the whole point I’m making. Here, they can’t legally do that. And until people get that fact through their skulls this boycott is nothing but destructive.

            But look, it’s not whether I trust them to act in good faith. It’s the people deciding whether the film will be in New Zealand or not. At the end of the day that ain’t me or Peter Jackson. It’s the bean counters at the studios. And like I say: good luck convincing them your legal solution is unworkable.

            And just for the record, the only comment that we’ve had from any of the A-list actors (Sir Ian McKellan) he doesn’t even seem to know the boycott is happening. Or at least if he does he’s sure not vocally supporting it. Google it for yourself.

            Okay, that’s all I can say. I’m retiring from this thing now. The personal insults get tiring pretty quickly, particularly to hear them from an admin. And to be honest, I think it’s safe to say anyone looking back over this forum can see who started the personal attacks first.

            Cheers,
            James

            • James 9.1.1.2.1.1
              6 October 2010 at 1:51 pm

              May I also just finally add, in regard to this point:

              “But look, it’s not whether I trust them to act in good faith. It’s the people deciding whether the film will be in New Zealand or not. At the end of the day that ain’t me or Peter Jackson. It’s the bean counters at the studios. And like I say: good luck convincing them your legal solution is unworkable.”

              Yes, before anyone says, also the govt can have a say in terms of tax incentives etc. And maybe that negotiation might be on the cards at the moment (I have no idea). But either way, to conclude that somehow Peter Jackson orchestrated this thing in order to collude with the government, and get the MEAA to call a non-sensical boycott action, in order to get these tax breaks… again, I ask: seriously?

              • IrishBill …
                6 October 2010 at 3:57 pm

                But either way, to conclude that somehow Peter Jackson orchestrated this thing in order to collude with the government, and get the MEAA to call a non-sensical boycott action, in order to get these tax breaks… again, I ask: seriously?

                I never said that. That’s a strawman argument

                And individually signed agreements have just as much legal standing as a collective agreement. The risk is the same.

                On the issue of rudeness I’d note that your demanding and patronising tone hasn’t been very helpful here. Perhaps it is best you leave.

                • James …
                  6 October 2010 at 5:46 pm

                  “And individually signed agreements have just as much legal standing as a collective agreement. The risk is the same.”

                  Well, I’m sorry you managed to completely fail to understand anything I’ve just tried to patiently explain to you. I can only try. You have my sincere apologies if my attempts to describe the obvious came over as demanding or patronising. Good luck with your future endeavors, I guess, is all I can say.

                  • IrishBill …
                    7 October 2010 at 1:13 pm

                    Under New Zealand law a collective agreement can be varied if both parties agree. This often happens if a company hit financial strife and the union agrees to work with it to vary the agreement (9-day fortnight deals on union sites required just such a variation). Industrial action to force a variation is not legal.

                    Bearing this in mind and also bearing in mind the fact that a refusal by a big star to sign a deal would a) not be considered industrial action. And b) could apply pressure on an employer to vary a collective agreement for better terms and conditions, could you please explain how, in your scenario, a collective would offer more protection than the legal fiction of a recommended contract arrangement?

                    • James …
                      7 October 2010 at 6:28 pm

                      Okay, cool. Good post. Let’s put down our weapons 🙂

                      First thing is I completely agree with your first paragraph. Now the issue with a collective agreement formed between the union and the hobbit could only be implemented if they were counted as employees. If that were the case then everything you say makes sense. But unfortunately they’re not aiming to be employees, so that’s by-the-by. Anything else would technically be legally unenforceable, but useful as a guide (which I think we both accept). So any kind of variation on that would be entirely legal (ie, if PJ wanted to give a lower individual contract for an actor, or actor’s equity wanted to suddenly demand something higher for an individual contract, for whatever reason, and re-threaten a blacklist of the production)

                      Now, for the second paragraph, I’m not sure what you’re asking. I don’t really have a scenario. I don’t think there’s any kind of workable way out of this in NZ law as it stands.

                    • IrishBill …
                      7 October 2010 at 11:16 pm

                      As I understood it your claim was that MGM’s decision makers would not accept a legal fiction (union recommended individual contracts) as doing so would involve more risk than a collective agreement elsewhere.

                      In your scenario the risk is that the union uses a significant casting change as an opportunity to reimpose a boycott and leverage up their terms in the middle of production.

                      You go on to say, again as I understand it, that this extra risk puts NZ at a competitive disadvantage over countries that can offer a collective agreement (whether that’s a collective of contractors or of employees).

                      However under NZ law a collective agreement (which would have to cover workers as employees) offers no greater protection from such an act of bad faith than union-recommended contracts would because an individual overseas actor’s boycott would not be considered industrial action under law and thus such a boycott could be used to impose a collective agreement variation on the employer.

                      Therefore there is no greater protection offered to the employer by a collective agreement than there is from an advised stock contract.

                      However, the risk to the producers from such an act of bad faith is, in both cases, extremely small as it would require the connivance of both the newly cast actor and the members of the union – a degree of widespread unreasonableness that would be staggering. I suspect that much greater risks are posed by more mundane things like currency fluctuations or weather risks to outdoor shooting.

                      Put simply, the hobbit is not going to stay or go on the basis of a minuscule risk posed by contracts facilitated by a legal fiction.

  10. prism 10
    6 October 2010 at 11:07 am

    Reading Gordon Campbell is like chewing dark chocolate flavoured with liqueur, his stuff is rich with facts, opinions seem to be very informed, lots of information – needs to be read slowly there is so much to take in. Delicious. Bit different than Paul Henry’s howling out in the back yard of TVNZ. “Will someone see what’s wrong with that dog?”.

    • James 10.1
      6 October 2010 at 12:08 pm

      So how did you feel about the bit where he says:

      ‘Even so, a lot of the emotion needs to be taken out of the issue. The rhetoric of New Zealand “losing” The Hobbit has always been overheated. All along, what we have stood to lose was only the location shoot.’

      So… all the actor’s work then? Great.

  11. James 11
    7 October 2010 at 11:53 pm

    “Put simply, the hobbit is not going to stay or go on the basis of a minuscule risk posed by contracts facilitated by a legal fiction.”

    Okay, I’m gonna have to take your word on the legal issues there, and it seems like you’re making some interesting technical points. I guess whether another boycott would be considered industrial action or not would be hard to pin down. Certainly, it ‘feels’ like industrial action to me, but whether it falls under the various technicalities of the law is out of my level of knowledge. The whole system is so different from the bargaining cycles overseas as I understand them, where unions actively negotiate collective contracts, the issues of what constitutes the ability to break a collective or no collective agreement in NZ make the whole thing difficult. Personally, I strongly suspect the Studios will have a horrible time accepting the fluidity of getting around what is ususally a relatively simple and straightforward system. Or at least, another complex system that they’re at least used to, and are compfortable working in.

    I’d expect that at the end of the day, the studios are probably going to have to forget about trying to make this work in NZ law, and come to some arrangements with the global unions to figure this thing out legally themselves, and it probably won’t directly involve Actor’s Equity anyway – though ultimately they’ll wind up getting offered MEAA/SAG rates as a result. Which is actually more than good with me.

    • BLiP 11.1
      8 October 2010 at 12:22 am

      The general tone of your comments, to date, has been that the employers are allowed to organise, but the employees cannot. Regardless of the workers’ legal status as independent contractors, there is no reason why those same people cannot form a mutually beneficial organisation. If that were the case, the Employers and Manufacturers, which operates just like a union, only worse, could not exist. Perhaps if you were to consider the idea that there are two equal parties to this dispute, “the studios” and “the workers”, it might help with your understanding. Both parties are required to produce the desired outcome and both should share justly in the proceeds. Just because “the studios” put up the capital doesn’t mean “the workers”, who put up the labour, are of less value in the equation. It seems to me you are favouring those with the money over those who actually spill the blood, sweat and tears. Its about respect.

    • IrishBill 11.2
      8 October 2010 at 12:33 am

      A boycott by an individual would not be considered industrial action in NZ. Employment law is no easier in most other countries. In the States, for example, industrial action is less proscribed than it is here which is a result of their generally more liberalised labour law. I have no idea what you mean by “bargaining cycles.”

  12. James 12
    8 October 2010 at 9:32 am

    *Sigh*

    Okay, well that’s cool, you guys keep arguing your point. I was under the impression people here might try to actually understand other people’s points before making their own. Apparently, that’s not the case.

    But that’s cool, I don’t have the time to bother with it. Ta-ra.

    • The Voice of Reason 12.1
      8 October 2010 at 10:02 am

      James, I think the difficulty IB and others have had with your point of view is that it seems based on the incorrect assumption that groups of contractors cannot have set conditions that apply to them all. It’s not only legal, it’s the basis most franchises work, the way courier drivers are contracted, the way TV presenters are hired and on and on and on. Jackson is using a spurious and cursory reading of contractual law as a fig leave to hide behind and when the deal is done, it will turn out that it’s OK after all.

  13. James 13
    8 October 2010 at 10:37 am

    Look at AE’s own legal advice on their own website and you’ll see that you’re wrong. Which is exactly the same as the crown law office, and every other lawyer that’s weighed in. You can have set conditions but they’re not legally enforceable. That’s the whole point I’m making.

    Oh gawd… just as I try to get out… they drag me back in.

    Okay, that’s it, I’m removing this from my shortcuts list.

    • IrishBill 13.1
      8 October 2010 at 6:23 pm

      They’re not legally enforceable by the union because the union isn’t a party to them. They are however legal enforceable as individual legal contracts which have been offered by Jackson on the advice of the union and accepted by individual contractors on the advice of the union. It’s effectively collective bargaining by legal fiction.

      I’m baffled as to why you would consider a contract between the producers and an independent contractor as having no legal standing.

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