A rushed law, a bad law

Written By: - Date published: 5:11 pm, October 29th, 2010 - 56 comments
Categories: Parliament, workers' rights - Tags: , ,

Charles Chauvel made a very good point about the Hobbit Enabling Act that National pushed through Parliament on Warner Bros’ instructions and National’s lawmaking practice in general last night.

The HBA says that the provision that all film workers are contractors “does not apply if the person is a party to, or covered by, an employment agreement that provides that the person is an employee.”

What this is meant to do is say ‘you’re an employee if you are called an employee in your contract, if not, you’re a contractor’. The problem is that it doesn’t say that. Straight off, you can see the definition is sort of circular: ‘you’re an employee if you’re an employee’ but it gets worse because to define ’employment agreement’ we rely on the very case that this law is meant to be supersede.

To understand, we have to go back to the Bryson case. Bryson was employed (without a written contract) by 3-foot six (a Jackson company) working fixed 8-hour days. He had a set lunch break, he got training, he was paid $18 an hour. In every way, you would describe him as an employee of 3-foot six. Six months in, the bosses presented Bryson and his workmates with contracts that referred to them as ‘independent contractors’. Bryson objected, because he didn’t want to lose his employment rights and have the employers’ GST and ACC costs lumped on him.

The Surpreme Court decided, in keeping with well established law, to apply the ‘duck rule’ – if it looks like an employment relationship (set work hours, breaks, expectations of holiday pay etc), it is an employment relationship. It was held that Bryson in fact did have an employment agreement and was an employee, despite 3 foot six attempting to make him into an independent contractor.

Following that ruling the law was clear: it is the facts of the employment relationship that give rise to the employment agreement, not the mere words on the paper the bosses thrust under the worker’s nose. The law was so settled that there has not been one more case over whether a worker is an employee or a contractor in the five and a half years since it was decided.

So, let’s go back to the law: the provision that all film workers are contractors “does not apply if the person is a party to, or covered by, an employment agreement that provides that the person is an employee.”

How do you define an employment agreement? Bosses will say that it’s simple, if the contract calls the worker an employee they have an employment agreement. But the Hobbit Enabling Act doesn’t expressly say that, so we have to go to case law.

Since the Bryson case hasn’t been explicitly overridden by this law its findings still stand. Bryson still forms the basis of how ’employment agreement’ is defined, ie on the facts, not on the mere wording. Or, at least, that’s a strong argument that many people will make if their employer tries to reclassify them as an independent contractor.

Before workers and employers knew that if they were, on the facts of the working relationship, in an employment relationship then the workers had employment rights. Now, the workers might say ‘the facts of my work mean I have an employment agreement, therefore my employment rights remain’ while the bosses might say ‘no you don’t, your contract says that makes you a contractor’.

So, the ‘problem’ hasn’t been solved at all. ‘Certainty’ hasn’t been provided. In fact, there’s greater uncertainty.

There will be many people right now looking at their working relationships and contracts to try to work out how to apply the HBA and Bryson, and who is an employee and who is a contractor. Reasonable people will disagree with strong arguments, which will lead to court cases.

Speaking in what appears to be Gabblese, Key seems to be acknowledging that the law doesn’t actually do what it purports to do:

“I rely on PCO and the lawyers to put all that stuff together. It’s never a perfect process going through urgency, we acknowledge and accept that, even when it’s a clarification for law. As a general rule we try and send legislation through a proper process right through to the select committee, just sometimes that’s not the case and this is not one of them.”

Take away the mangled syntax and information-free statements (yes, John we know it didn’t go to select committee, the question is why not) and Key is saying ‘yeah, we rushed and we stuffed up but I’m relaxed about it’.

Don’t you love a Prime Minister who refers to the law that he has just forced the Parliament to go into over-time to pass as “all the stuff”?

This is what you get when you rush through poorly thought-out laws. Whenever a new law is passed people have to look at it and decide how it applies to them in the real world. When the drafting is vague and doesn’t wholly address the existing situation, people are going to have strong and legitimate disagreements on how to interpret the new law and those disagreements have to be decided in court. It can be better to have settled law that is sub-optimal rather than constantly changing the law so nobody knows where they stand.

If this law had gone through select committee it would almost certainly have come out with this problematic drafting fixed so that there could be no confusion as to what an employment agreement is.

Which is exactly why you don’t rush though laws. But it’s National’s standard practice to do so. It has rushed through all kinds of legislation with vague definitions that are now leading to court cases.

Rushed law is not good law. By abusing the lawmaking process and slamming half-arse bills through Parliament, National is simply creating more problems for the future.

PS. I’ve just watched Chauvel’s third reading speech. Apparently, Wilkinson added a last minute amendment that an employment agreement must be in writing, thinking this cleared up the problem Chauvel has identified. As Chavuel explains, this doesn’t clear things up – it makes things worse. He also points out that by weakening labour laws, we’ve violated the China Free Trade Agreement. God, how embarrassing.

56 comments on “A rushed law, a bad law ”

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  1. mickysavage 1
    29 October 2010 at 5:25 pm

    The further problem is that “Employment Agreement” is defined in the legislation as the “contract of service”. As recognised in Bryson this can include verbal as well as written terms, depending on how the contract is formed. So it seems very likely to me that the Court will have to apply the Bryson case to see if there is an employment agreement.

    If there is, the amendment does not apply. If there is not then the amendment does apply but does not change anything.

    There was a SOP introduced today by the Government which I have not seen. It may have fixed this problem up. The mere fact that a SOP had to be introduced for such a short bill emphasises why urgency was so stupid. They should have sent it to a select committee.

    • toad 1.1
      29 October 2010 at 6:10 pm

      Micky, the SOP related to employment agreements having to be in writing. It is a travesty of the principle of open governemtn that is still doesn’t appear on the Parliamentary website or on legislation.govt.nz.

      And I think you and Charles Chauvel are correct. If a purported “contract” actually has conditions in it that meet the test of the “contractor” actually being an employee, the Employment Court will accept jurisdiction and accordingly decide the “contract” is actually an employment agreement.

      This is what Government gets when it rams stuff through under urgency without Select Committe submissions and scrutiny. There are hole in this that don’t need a bulldozer to drive through, just as there were when the Nats similarly rammed through the fire@will Bill and the Employment Court’s judgment in Heather Smith’s case has now come to bite them on the bum.

  2. Colonial Viper 2
    29 October 2010 at 5:50 pm

    I have a feeling that the Key Government simply wants to make a point to unions and to the Labour Party. The week after Labour Day just adds salt to the wounds.

    Give them a bit of money and National will happily sell our sovereignty for a song.

  3. The Voice of Reason 3
    29 October 2010 at 5:53 pm

    A thing worth knowing about Bryson v the Jackson company is that it wasn’t unique. It’s just the most recent example of a ruling that has been made regularly in employment courts around the world since there first was a legal concept of ’employee’.

    Usually the cases are about the different entitlements or treatment a worker gets under either option and at a guess, most, like Bryson, would determine whether a worker had the ability to lodge a presumably more advantageous personal grievance case in Employment Court.

    I’ve seen Jackson’s attitude many times. Otherwise well meaning employers who see workers organising collectively as ingratitude or disrespect. Warner Bros didn’t give a damn about the law. They only played along as a favour to their business partner, Peter Jackson, who is the one with a five year grudge and a reason to whinge. Warners were only there for the cash, helping St Peter out was a bonus. And having the leader of a democratic country dance for nickels like the broken arse town drunk was probably pretty kewl too. They’ll be laughing that bit up in a cigar bar somewhere on Sunset Blvd as we speak.

    • pollywog 3.1
      29 October 2010 at 6:24 pm

      …having the leader of a democratic country dance for nickels like the broken arse town drunk was probably pretty kewl too. They’ll be laughing that bit up in a cigar bar somewhere on Sunset Blvd

      eh !!!

      He does a pretty mean poll dance too.

      I mean, don’t you just wanna get pissed and stuff a note down his knickers ?

    • Tigger 3.2
      30 October 2010 at 8:24 am

      Bryson is not unique also in that the film, and TV, industry are full of people who are contracted as contractors but expected to act like employees. Its the industry’s dirty little abuse and just like secret abuse anyone who dares speak up is vilified. All this crap about being wanting to be contractors is just that – they don’t have a choice and most of them weren’t in the industry pre-Employment Contracts Act so this is all they know.

      TVOR – “having the leader of a democratic country dance for nickels like the broken arse town drunk ” – this is easily the funniest, and most accurate, description of Key I’ve read – will never look at him again without this springing to mind – brilliant.

      • The Voice of Reason 3.2.1
        30 October 2010 at 10:44 am

        Cheers, Tigger, I wish I had the skills to animate it. It’d probably be even better with Brownlee in it too, maybe dressed in a beer barrel held up with braces and blowing frantically on a broken harmonica. Nice.

  4. Lanthanide 4
    29 October 2010 at 5:56 pm

    No matter, King Gerry can sort it out in two ticks.

  5. Steve Withers 5
    29 October 2010 at 7:43 pm

    This has all been fascinating to watch. Makes me wonder why any sane person would follow a career in the movie industry in NZ or anywhere else. Actors, perhaps….in the hope they become big names and can one day command a very good amount of money. But the technical people behind the scenes? Sounds like a lousy way to earn a crust, frankly. Especially when your own government acts to ensure you can only ever get a job on take-it-or-leave-it terms. I’d be leaving it before I even started.

    • mcflock 5.1
      29 October 2010 at 8:17 pm

      I’ve known a few actors and techs, admittedly mostly theatre (they’d been in TV and films, but this is NZ). Generally they like doing the job and the entire hooplah of the work, but the techs usually have skillsets and certification to keep them alive between projects if they want to stay in NZ. Worst comes to the worst especially the lighting guys can usually go into the construction industry as they’re already certified to play with high voltage circuits and other poppenze spitzenze sparken things.

      Most of the actors I’ve know got the bulk of their money from customer service work. It’s just the nature of acting that you might be expressive with people, but it doesn’t necessarily translate to other careers in the same way that e.g. journalism and PR are related. But the work itself is pretty high octane – “one crowded hour” and all that.

      But it doesn’t mean they should be treated like third world fry-cooks.

  6. Rob 6
    29 October 2010 at 7:52 pm

    It always makes bills seem so much more rushed when you look at the bills page on inthehouse this one comes up as 4 pages of debate in a row…

    On the bright side of it being such a stupid law it is likely to have an incredibly limited effect and can just be repealed later…

  7. Hilary 7
    29 October 2010 at 8:00 pm

    The Court Report will be covering this law next week, TV7 Thursday 9.35. Should be interesting.

  8. ianmac 8
    29 October 2010 at 8:02 pm

    Actors are necessarily contractors aren’t they? If so, then they copped the blame yet the Act as passed would make no difference to them at all, would it?
    Surely those affected would be techies, receptionists, painters and so on.

    • Rob 8.1
      29 October 2010 at 8:05 pm

      My understanding was that it will only affect people in the film industry and the gaming industry. It means some full time staff in those industries and regular staff like stunt doubles who may actually work as employees but not have it stated in their contracts will now be declared as contractors. It will be quite a small group I imagine…

      • ianmac 8.1.1
        29 October 2010 at 8:22 pm

        Asking it another way. Is there any film actor in NZ who is an employee?

        • Rob 8.1.1.1
          29 October 2010 at 8:28 pm

          If someone was a major/consistent role in a film with a long shooting time it is quite probable they might get hired on a fixed term employment contract rather than as a contractor. It is on the borderline between the two categories and what you are at that point essentially depends on what they want to put in your contract.

  9. Em 9
    29 October 2010 at 8:09 pm

    One might also ask just how this addresses the original ‘issue’ of actors (who were then and remain contractors) attempting to negotiate a set of minimum conditions for the shoot. If the problem was a planned boycott by overseas actor organisations, it’s hard to see how this helps at all.

    One might also ask what the need was to have the Bill/Act also apply to video game-makers?

    • Rob 9.1
      29 October 2010 at 8:12 pm

      It wouldn’t affect the current dispute had it already been in place. In terms of including games I guess they couldn’t work out how to distinguish Weta from a game studio in the amount of time they had… Only 1 case has come up for the area this law is dealing with in the film industry. It was surprise surprise though a case against Jackson also 5-6 years ago.

      • mickysavage 9.1.1
        29 October 2010 at 8:23 pm

        I really get the impression that the law change was for Jackson’s benefit, not Warners.

        Jackson’s companies had to deal with the contracts and pay the employees/contractors. Jackson’s company was the respondent in the Bryson case. Jackson spent a huge amount of money going to the Supreme Court when with a discrete settlement it could have disappeared without him breaking a financial sweat.

        And if Warners were worried about the (remote) possibility of strike action then different sorts of law reform would have appeared.

        The way that I see it the law change is that timid that in financial terms it is not needed, it just makes someone feel better.

        • Rob 9.1.1.1
          29 October 2010 at 8:25 pm

          Yes that is pretty much exactly as I see it also.

        • Pascal's bookie 9.1.1.2
          29 October 2010 at 8:48 pm

          maybe. But as I understand the Bryson case the threshold was pretty high. High enough that it hasn’t concerned PJ, (or anyone else), enough to lobby for a legislative fix in the intervening years.

          Sooo, this legislation doesnae fix the industrial issue that triggered the ‘crisis’. Something fixed that issue though, so it must’ve been Helen Kelly’s work resulting in the boycott call off and assurance of no further disruption.

          But oh noes.

          That being sorted before the negotiating team sets foot in Wellington doesn’t suit Warner’s narrative, and it doesn’t suit the government’s. Both those party’s would prefer a pretext for their arranging of tax cutz thank you very much.

          Warner’s held the cards in terms of being able to walk away, but it wasn’t that strong a hand given the costs in walking, the loss of goodwill with fans etc. Still worth playing though especially if you can say there is an industrial issue. It’s worth something, about 30 mill as it turned out.

          The Govt knew there was some risk of Warners walking and knew they would have to give something. They can’t publicly say the industrial issue is sorted though, because that gives a win to Kelly.

          So both warners and the govt knew the pretext was bullshit,

          but neither wanted the pretext out of the way,

          for slightly different reasons,

          so it needed to be dealt with somehow,

          hence

          the Hobbit enabling act.

          That’s my theory, I’m sticking with it.

          • mickysavage 9.1.1.2.1
            29 October 2010 at 9:12 pm

            OK PB.

            I don’t disagree. I am trying to work out a rational reason for the crisis.

            There must have been a reason for Warners to want the law change. And the obvious reason is that Warners wanted more money.

            So they looked at the crisis and saw that there was a weakness and an issue and so they chose to make this weakness part of the negotiation. It was much better to raise this than to just make the dispute about money. And there was no other issue they could raise.

            So there was no benefit for Warners from the law change. Apart from the cover.

            • ianmac 9.1.1.2.1.1
              29 October 2010 at 9:20 pm

              Brownlie said in the House that Warners did not ask for the legislation, so Key must have offered it. Did he want a scapegoat?

        • IrishBill 9.1.1.3
          29 October 2010 at 8:50 pm

          Hmm. Perhaps it should be the “there, there Peter, the mean old courts don’t understand how special you are” amendment.

          • Craig Glen Eden 9.1.1.3.1
            29 October 2010 at 9:45 pm

            ianmacs right Brownlie was also quoted in the Herald today saying Warners didnt ask for Labour Law changes. So either Brownlie’ lying or Key is.

            Brownlie also admitted that Helen Kelly had played a positive roll in resolving the dispute.

            So maybe Brownlie has had enough of Keys bullshit! It stuck me as odd that Brownlie was deliberately contradicting Key, I am waiting for Brownlie to have to come out and say he got it wrong and it was all as John had said. Pretty embarrassing for Key as it stands.

        • Colonial Viper 9.1.1.4
          29 October 2010 at 9:25 pm

          Yes, almost purely for Jackson’s benefit. Our democracy is reduced to law changes based on the lobbying of one man. Note the Hobbit law change covers both films and *video games*. Which coincidentally happens to be an area of future growth for WETA. Neat huh.

          • Em 9.1.1.4.1
            29 October 2010 at 10:38 pm

            You are indeed correct, sirrah

          • QoT 9.1.1.4.2
            30 October 2010 at 12:49 am

            And can I just take this moment, when all my film-related acquaintances’ Hobbit-related jobs are safe for the time being, to say I am a bit fucking sick of Mr Cuddly Panda Richard Taylor getting wheeled out to act like an aggrieved party on this one? You’re an employer, Sir Richard, whose staff are almost entirely on short-term rolling contracts with no job security past the next project. Fuck off.

            • Colonial Viper 9.1.1.4.2.1
              30 October 2010 at 1:23 am

              And why are those so-called smart staff absolute frakin Lemmings?

              They missed out somewhere along the way in their education.

              • QoT …
                30 October 2010 at 12:04 pm

                Well, when you’ve got one major employer in your industry in the entire country and the boss says “jump”, and also “Look, over there, a threat to your employment that isn’t me!” …

            • Vicky32 9.1.1.4.2.2
              30 October 2010 at 2:35 am

              I wonder, why is he a “Sir?”
              Deb

  10. Joe Bloggs 10
    30 October 2010 at 9:55 am

    The irony is that without the union-initiated boycott, the law changes – which you claim will weaken workers’ rights – would probably never have happened.

    • The Voice of Reason 10.1
      30 October 2010 at 10:17 am

      Almost right. If it wasn’t for Jackson’s arrogant refusal to meet with the actor’s reps, the boycott would never have been called in the first place. The irony remains though, because it’s bloody ironic that even though St Peter successfully hid behind the current laws our craven leader still felt the need to make a meaningless law change as a sop to his hurt feelings.

      • Joe Bloggs 10.1.1
        30 October 2010 at 1:09 pm

        More Leftist revisionism – check the timelines – the boycott was called before Jackson was approached to meet with the actors’ reps.

        then check out Fran O’Sullivan for an excellent summary of the settlement:

        http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10684017

        and Derek Cheng’s timeline – at last some objectivity on this site:

        http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10684062

        • Craig Glen Eden 10.1.1.1
          30 October 2010 at 2:14 pm

          The funny thing is the Tories pass a law that opens the employer up to more potential court room action. Jackson got what he wanted and as the saying goes be careful what you wish for.

          As the facts have shaken down it has become clear according to Brownlie( Both in yesterdays Herald and in Parliment) Warners didn’t want the law changed nor did they ask for it.

          As for Frans summary, I thought it was crap myself but it will get her another bottle of wine no doubt.

          • Colonial Viper 10.1.1.1.1
            30 October 2010 at 2:33 pm

            Fran all over the place, making excuses that big Studio money found John Key’s “inflexion point”. WTF, really?

            You mean they read him like an open book in order to walk away with (her figures) $90-100M of tax payers money.

            Looks like we are paying for the damn movie, at the cost of $21 per capita.

          • tea 10.1.1.1.2
            31 October 2010 at 12:49 am

            Hi Craig- sorry did Brownlee in the Herald make it to the website? Can’t find it straight off

            • Craig Glen Eden 10.1.1.1.2.1
              31 October 2010 at 7:53 am

              Yes it was on the website and he repeated it on Friday in Parliament.

              • tea …
                31 October 2010 at 9:26 pm

                sorry to be a douche…but any chance of a link? I had to really dig to find the bit about the emails showing the boycott had been called off…this has to be hidden fairly well too!

  11. Murray 11
    30 October 2010 at 12:13 pm

    OH Diddums! some of you lot may need counselling to get over this

    • QoT 11.1
      30 October 2010 at 12:15 pm

      Ah, the good old equating of disagreement and anger with mental illness. Class.

      • Murray 11.1.1
        30 October 2010 at 12:28 pm

        what on earth has counselling got to do with mental illness

        • QoT 11.1.1.1
          30 October 2010 at 12:44 pm

          It’s okay, Murray. I get that you’re in denial about how your comment explicitly linked people’s anger over this decision with distraught/traumatic emotions requiring professional intervention, entirely to make those people’s anger seem unimportant or irrational.

          • Joe Bloggs 11.1.1.1.1
            30 October 2010 at 1:17 pm

            newsflash – your anger IS irrational – the unions fucked up and caused this mess.
            Start, middle and end of story.

            Nothing to do with Richard Taylor, et al. No dark conspiracies. Just a few fucked up unionists overblown with their own importance. That’s why the workers rose up against the unions on Labour Day.

            • ianmac 11.1.1.1.1.1
              30 October 2010 at 1:33 pm

              Actually don’t people have the right in NZ to seek to improve their lot?
              Business Round Table. Employers Federation. Actors Equity. Act Party. Maori Party. Teachers. National Party. Auckland Citizens. My wife. Students. MP’s overseas trips.
              The trouble with you Joe is that by being against everyone, you automatically don’t play fair.

            • QoT 11.1.1.1.1.2
              30 October 2010 at 2:12 pm

              The unions controlled John Key and forced him to pass [ironically probably ineffectual] anti-worker legislation in order to make a US studio happy? That doesn’t seem logical … OH WAIT, I get it, you’re talking out your ass and really don’t like people pointing out that attacking the Left for being emotional/irrational is a fairly boring tactic at this point.

            • Vicky32 11.1.1.1.1.3
              31 October 2010 at 7:00 pm

              “That’s why the workers rose up against the unions on Labour Day.”
              To what are you referring? If you mean Sir Richard’s ermployees marching to his order, then that’s not “the workers (rising) up”, that is the workers doing what their boss tells them they must do, to keep their jobs…
              Deb

  12. tea 12
    30 October 2010 at 2:07 pm

    Perhaps Kate and Gerry could give some of those ‘hand wringing academics’ a call and ask them what a law is and how it works and if it has a money back guarantee.

    surely if this is an example of National’s Standards someone has to call their arrogance and incompetence out and be heard by the general public?

  13. tea 13
    30 October 2010 at 2:10 pm

    wow reading thread.

    How can questions not be asked when ministers are contradicting the Prime Minister?

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