Big ups to Helen Kelly and a question for the lawyers out there

Written By: - Date published: 12:17 pm, October 3rd, 2010 - 14 comments
Categories: employment - Tags:

CTU president Helen Kelly has managed to negotiate for a meeting between Peter Jackson and Actors Equity.

This is great news and hopefully Kelly will help facilitate the meeting – she’s got a solid record of being able to steer a sensible course through fraught negotiations and with a bit of luck she’ll help get this one sorted too.

A happy ending for this dispute does not however, fix the broader problem of independent contracting being used to circumvent employment law. And finding a legislative fix to that may not be an easy task.

Two potential answers I can think of would be:

Change the legal onus of proof of employment to make it the employer’s responsibility to prove the relationship is contractual rather than an employment relationship. Currently the onus is on the contractor/employee to prove that they are an employee and this is generally an expensive legal exercise.

Such legislation would make film workers fixed-term employees by default but also allow them to be contractors if they wished. If producers thought they could make a case for them being independent contractors they could take it to the ERA.

Of course such a law would still allow producers to pressure individual workers to opt-out but it would also allow them to organise collectively to push back rather than the current situation in which they start from a position of significant weakness.

Or alternatively the commerce act could be changed to allow single-employee contractors the same rights to negotiate collectively that employees’ enjoy with access to the dispute resolution processes provided for by the ERA.

I think that altering the employment relations act would be the better answer as it would fit better with the intent and the current provisions of that legislation but I’m no big city lawyer and I’m well aware that every legal change creates it’s own loophole and the law of unintended consequence never sleeps.

So as a non-lawyer I’d be very keen to hear from our legally trained commenters what the pros and cons of each change would be and whether or not there’s a better way to protect workers from independent contracting without making legitimate contracting more difficult.

14 comments on “Big ups to Helen Kelly and a question for the lawyers out there”

  1. James 1

    I’m not a lawyer, but my understanding is that it already is up to the actors to decide if they want to be classed as employees, which involves various issues such as having to give up the right to claim tax expenses.As such, it’s they themselves that have decided to class themselves as independant contractors rather than employees.

    “Or alternatively the commerce act could be changed to allow single-employee contractors the same rights to negotiate collectively that employees’ enjoy with access to the dispute resolution processes provided for by the ERA.”

    Yes, it is also my opinion that is the only (though admittedly tough) viable way forward. But that would involve political will and the public support to create that political will. Which arguably, due to the way that this current dispute has been managed, has been severly damaged in the foreseeable future.

    That, in a nutshell, is a big part of my, and many other people’s frustration with the way this has played out, and the way Actor’s Equity and MEAA have managed this. Great cause, poorly managed and ultimately destructive to that same cause as a result.

    And yes, thank god for Helen Kelly.

    • IrishBill 1.1

      I believe that most producers refuse to hire workers unless it is as independent contractors so I’m not so sure that they could be fairly classed as have chosen that route themselves.

      I’m not sure the unions have done that badly with their publicity but they certainly could have done better. That said they’re a small volunteer-based union who have been up against some very polished operators.

  2. James 2

    well, canvassing their own members on whether they wanted the film boycotted on their behalf, BEFORE the boycott begun and all this s**t started flying might have been a good start.

    • grumpy 2.1

      Thank God for the CTU and in particular Helen Kelly. The Aussies virtually took the NZ film industry to it’s knees but showing uinexpected common sense, the CTU got together with Jackson and other producers when the Aussies merely threatened a boycott.

      This is a victory for a new style of union representation – one completely foreign to the average “pro union” contributor to this site.

      • Colonial Viper 2.1.1

        Uhh…a lot of us work with the very people who lead this ‘new’ (actually its not that new, its been developing in NZ for 10 or so years) style of union representation, as you call it.

        You better get used to the idea that Labour supporters and unions know as much about running a successful, productive, advanced business as anyone else.

        • Zeebop 2.1.1.1

          Yeah, we’re all in it to make profits, and come back to make more profits later, what seems to provoke the left is being forced into positions where they have their basic human rights of free choice that requires face to face talks
          removed, our inalienable rights, taken away from them by big government backing a few wealthy people who like as not don’t wantor need their Naffy Nat ideological straitjacket intervention.

          Why would Jackson, who is a NZ icon, want to lose the Hobbit to E.Europe??? It would be like winning a yacht cup and then going and working for another team to win it back off us!!! Jackson would be just another international profit seeker.

  3. Steve 3

    Helen Kelly was on Q&A. “I’m not talking about The Hobbit” Right.
    So Pholmes had to change the subject. TVNZ control again, don’t upset the Unions

    • Colonial Viper 3.1

      Well you’re a bit silly if you expect Helen Kelly to comment on commercially sensitive negotiations in progress.

  4. Jen 4

    One of the legal tests to determine whether a worker is a contractor or an employee relates to the amount of control a contractor/ employee has in the relationship. It always strikes me as being an absolute nonsense for a Principal(employer) to insist that a worker be a contractor rather than an employee, That particular exercise of power and control negates a crucial aspect of the contract for services which is that the contractor is a person in business for themselves, actually controlling their own work. The first stipulation I would make in respect of this issue would be that the initiative for entering a contract for services as opposed to a contract of service ( employee relationship) must always come from the worker themselves. That wouldn’t solve all problems but it would eliminate one particularly noxious abuse of power. With the Chorus telco worker issue which happened last year (?) we had the bizarre situation of employees being forced by their employer to go into business “on their own account” . The employer even insisting that these workers form their own little company, just to complete the fiction (and to make it less likely that a court would find that notwithstanding the words of the contract, the parties were really in an employer/employee relationship.

  5. Jen 5

    Hi James, in fact the ERA mediation services can already be used by parties to a “contract for services” who have a problem.

    “Section 144A ERA
    Nothing in this Act prevents the chief executive from providing dispute resolution services to parties in work-related relationships that are not employment relationships.”

  6. luva 6

    What the fuck does ‘Big ups’ mean?

  7. James 7

    @Jen?

    “With the Chorus telco worker issue which happened last year (?) we had the bizarre situation of employees being forced by their employer to go into business “on their own account” . The employer even insisting that these workers form their own little company, just to complete the fiction (and to make it less likely that a court would find that notwithstanding the words of the contract, the parties were really in an employer/employee relationship.”

    So what’s the legal status with that?

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