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The changes to employment law

Written By: - Date published: 7:36 pm, October 28th, 2010 - 40 comments
Categories: capitalism, workers' rights - Tags:

I’m not sure exactly why the government is changing employment law today. They claim it’s to provide certainty to Warners but there are a couple of things to note about the bill:

It stops film workers from taking drawn out and expensive legal action to prove they are employees. Something I’m pretty certain only one film contractor has done – five years ago.

But it wouldn’t have made a difference to the do-not-sign notices nor to the international work ban. In fact it doesn’t offer any greater industrial certainty than exists currently – if Actors Equity or a union representing other Hobbit Contractors wanted to it could call another ban under the changed law just as easily.

So what’s the point? Did Key tell Warners it would make a difference or did Warners just not care (and why would they, they were happy enough when the ban was called off days before Jackson pulled his media stunt)?

I suspect it was a request from Peter Jackson. After all it was Jackson’s company that was ruled against by the Supreme Court and I reckon he’s the kind of guy who would nurse a grudge.

But whatever the motive, in other countries legislation is generally changed to reflect the decisions of their supreme courts. In New Zealand it’s now being changed to overrule a Supreme Court decision a multinational company doesn’t like.

There’s a term for that kind of government: corrupt.

Update: it looks like Andrew Geddis and Steven Price are asking the same question.

Frankly I’m starting to suspect this meaningless law change has been put through to make it look like the employment issue was the problem, not the tax breaks.

40 comments on “The changes to employment law”

  1. I commented before that there may be a problem. Charles Chauvel has identified it in parliament. He was incidentally one of the counsel involved in the Bryson case.

    Clause 4(2) of the bill says that the deeming provision (that film workers are contractors) does not apply “if the person is a party to, or covered by an employment agreement that provides that person is an enmployee”.

    So you still need to analyse the contract to see if it is an employment contract or not and if it is an employment contract then the amendment does not apply. If it is not an employment contract then the amendment applies but this begs the question of why have it.

    If this argument holds the bill is toothless and does no more than reflect current law.

    • tsmithfield 1.1

      Micky, my understanding is that the purpose of the amendment is to clarify existing legislation. If that is the case, then the actual effect of the legislation shouldn’t change. Furthermore, I have heard various government ministers saying that workers won’t be any worse off with this amendment, confirming that the purpose is just to clarify the existing law.

      Therefore, you may be right about the amendment having no effect, and this may well be the intention. If that is the case, then why are Labour making such a fuss about opposing the legislation? Why don’t they just vote for it?

      • IrishBill 1.1.1

        My understanding of it is it is being done to provide certainty to WB. Can you explain how it does this?

        • tsmithfield 1.1.1.1

          Who cares? I assume they will have seen the legislation and are happy with it. If the effect is no effect, then why not just vote for it to keep Warners happy. After all, legislation like that doesn’t change anything, so voting for it shouldn’t be a problem. Should it?

          • Colonial Viper 1.1.1.1.1

            We’ve signalled that we are a banana republic willing to take parliamentary action to appease a foreign multinational willing to throw a couple of hundy mill our way.

      • Armchair Critic 1.1.2

        Labour’s job is to oppose the government. Last time they didn’t this happened.

      • Mickysavage 1.1.3

        TS

        I don’t see that it changes anything. The current test arguably still applies and if so I wonder why there is a need for urgency.

        If it is to address the Bryson decision then I am not sure if it changes the effect of the decision and in any event the affected party must be Jackson and not Warners.

        Jackson is obviously deeply interested in the decision, he did take it to the Supreme Court. He must have spent much more in legal fees than what was at stake. And why would Warners be interested in possible labour costs that Jackson has to cover?

        • Roflcopter 1.1.3.1

          I believed it’s designed for contracted film workers to fall in line with the same legislation that applies to the likes of real estate agents and sharemilkers.

          And yes, Jackson would be the affected party, and removes the confusion around when PJ told AE/MEAA to talk to SPADA.

          The AE/MEAA could have cited the Bryson decision as proper grounds to deal direct with PJ and collectively negotiate terms and conditions, but now they have no option but to deal with SPADA, and (I believe) are now pursuing Pink Book terms and conditions with them.

          Warners have to be an interested party. It’s their money at stake, and any downtime due to complex negotiations in an uncertain environment doesn’t stop the money-clock ticking. Negotiating with SPADA is an outside-of-film exercise and doesn’t affect production.

    • Oliver 1.2

      Currently there are 5 subjective tests used to determine whether someone is an employee or a contractor.

      – The control test;
      – The independence test;
      – The organisation or integration test;
      – The intention test; and
      – The fundamental test.

      These are not alternative or distinct tests, but are simply relevant factors to be considered, and in some cases the nature or the relationship may not be clear-cut, there may be competing factors. Tested in the case TRA Case z10 (2009) 24 NZTC 14,113. This law change just makes it clear that a contractor is a contractor in the film industry – nothing scary or “anti-worker” in it at all.

      • Colonial Viper 1.2.1

        Of course its anti-worker as some workers are actually being used as employees not as contractors in that industry.

        But aside from that this change is also deeply anti-democractic. More specifically, this is a return to the days of Rob Muldoon’s National Government. We have an issue being pushed by a couple of people (Jackson et al plus US private interests) which at its heart is not even a statutory or regulatory problem. Its an issue of industrial relations between parties involved with an operating business. But don’t worry, the Government will do a few favours for one side of the argument and pass a special new law to deal with it.

        And then the next special interest issue which arises? And then the next one? And the next special event which rolls along, like an earthquake or the RWC?

        This is a sad, incredibly disappointing slide into NZ’s past, and into the same behaviour as you would expect from a badly governed, third world country.

        • Oliver 1.2.1.1

          Except as Micky points out

          “Clause 4(2) of the bill says that the deeming provision (that film workers are contractors) does not apply “if the person is a party to, or covered by an employment agreement that provides that person is an enmployee”.

          So you still need to analyse the contract to see if it is an employment contract or not and if it is an employment contract then the amendment does not apply.”

          • Colonial Viper 1.2.1.1.1

            That doesn’t stop this being a Rob Muldoon ‘new legislatation as the answer’ for every special interest and every perceived problem you can find.

  2. Red Rosa 2

    So now our laws are made in Hollywood?

    This bill should be reviewed by the California Supreme Court, they have had plenty of experience. And the Screen Actors’ Guild is Ronald Reagan’s old union.

    http://en.wikipedia.org/wiki/Screen_Actors_Guild

    Now the dust has cleared, it looks very much as though little old NZ has been played for the proverbial sucker.

  3. RedLogix 3

    I have to give credit to one of my more far-right colleagues today for some intellectual consistency today. We almost never agree on anything political, but even he volunteered that he thought this kind of law-making highly dodgy.

    From his point of view we’ve just put out a big neon sign to anyone in a position to threaten major capital flight…”we’re rubes…take us”.

  4. Carol 4

    Heather Roy, in the debate on the new law, was very enthusiastic about it. She said it’s great for workers, and that it’s so good, ACT would like to see it extended to all workers. What difference would that make?

    • burt 4.1

      It would acknowledge to the NZ taxpayers that they too can have the terms and conditions it takes to make multinationals do business in NZ.

      This is the biggest point to me, why do NZ owned and operated businesses that spend their profits in NZ pay more tax on each hard earned dollar than a multinational corporation?

    • Em 4.2

      It would mean that the default for new workers would be that they would be deemed contractors unless they could get the employer to offer an employment agreement – i.e. no minimum employment rights – and even if the job was really an employment relationship they couldn’t challenge it.

      • KJT 4.2.1

        No more employment rights. The employer says we are all contractors.

      • burt 4.2.2

        Um, I think it would mean that their employment rights were as specified in the contract, nothing stops them choosing a union contract and paying union fees if that’s what they want to do.

        The actors union must be pretty poor value for money if it’s fighting for membership numbers based on a legal interpretation of employee or contractor.

        • The Voice of Reason 4.2.2.1

          “nothing stops them choosing a union contract”

          There isn’t a union contract, Burt. That’s what the whole thing was about. The union was looking for enforceable minimums that individual contracts could be built on. Nothing whatsoever to do with the case 5 years ago where a sacked worker went to court to find out if he was a contractor or an employee in order to take a grievance case. The court said ’employee’ based on a series of tests that have been used for decades to determine exactly that question. The tests are questions like who pays the tax, who directs the work, the degree of independence and others along those lines.

          • burt 4.2.2.1.1

            There isn’t a union contract, Burt. That’s what the whole thing was about.

            OK, so the union can’t or won’t act as an agent for the actors? Oh well, someone else will.

            • The Voice of Reason 4.2.2.1.1.1

              There is no contract without the company’s signature as well so joining the union does not automatically grant access to a collective agreement. Getting a CEA in place is achievable under the good faith provisions of the ERA, but Jackson argued that it was an illegal process under commercial law.

              Even if it were, nothing would have stopped the parties meeting, even if it was only to agree that nothing further would happen. And nothing stops Jackson’s company giving template contracts to their workers, which is a form of collective bargaining without the tiresome process of actually bargaining.

              • Colonial Viper

                but Jackson argued that it was an illegal process under commercial law.

                Yeah and Finlayson too, who knew better than to extend his advice.

                Talk about compromising your principles for no good reason.

        • KJT 4.2.2.2

          They cannot. NZ law specifically prohibits “Independent contractors” from negotiating collectively. That is the reason why companies like Telecom and 3’6″ force people to become contractors. Because they cannot negotiate except singly and none of the labour rules apply.
          No minimum wage, no breaks, no personal grievances and no rights to fair treatment of any kind.

          This just continues NZ’s spiral towards a third world economy.

  5. ghostwhowalksnz 5

    Quite an coincidence in that Warner Bros were the Studio working with Jackson and had a shortlived ‘ boycott’

    During the postwar era ( Jack)Warner supported an anti-Communist crusade that culminated in the “blacklisting” of Hollywood directors, actors, screenwriters, and technicians.
    http://en.wikipedia.org/wiki/Jack_Warner

    Its just tooooo delicious

  6. Tony 6

    And the Maori Party is voting for the legislation. Disgraceful. The sooner these sellouts are consigned to history the better.

  7. wtl 7

    Brownlee has said that WB did not ask for the change to employment law (after all, it was always about $$$ for them). Which means it was solely decided by Key. Interesting that it applies to video games as well. Isn’t Weta involved in video game production? Isn’t this whole thing sounding like a law specially made up for PJ – he must have managed to convince Key to change the law as he’s upset that he lost the Bryson case. Wouldn’t be the first time Nact made up laws specially for their mates.

    • Colonial Viper 7.1

      Pardon the pun, but in this unseemly business, Sir Peter Jackson has clearly been the ‘bad actor’.

      The LA execs will have taken their lead from him in terms of being informed by and managing the local unions, actors, Government interests.

      The unions, as bumbling an uncoordinated as they have been, have been caught in a crusher by smarter, more determined industry players.

      Jackson IS anti-union, despite being a member of and receiving benefits from 3 different unions himself.

      • V 7.1.1

        If by anti-union you mean to not bow to a union threatening a boycott and trying to pass this off as negotiation, we are all the better off for his stance.

        • IrishBill 7.1.1.1

          How about Warners threatening capital-flight and calling it a negotiation?

          • V 7.1.1.1.1

            Plenty of other (cheaper) places in the world in which to make movies.

            • Colonial Viper 7.1.1.1.1.1

              Despite that, ‘expensive’ countries like Australia, Canada, US, UK, Ireland, still get the absolute bulk load of international locations and productions.

              And amazingly, those countries are heavily film worker unionised where they get to agree collective terms and conditions with producers. And somehow they manage to stay successful as film making nations. Or maybe they are successful *because* looking after workers means that you get the best talent.

              Frankly all of this tells me that you don’t have any real idea. Apart from supporting NZ in a race to the bottom of global pay scales and encouraging your own kids and grandkids to flee overseas where they can get decent pay and decent working conditions.

    • Bunji 7.2

      Could be terrible for workers in the (albeit small) video game industry. Most aren’t employed on individual contracts, but many are already getting screwed on wages and conditions as it is, without handing more power to their employers (who generally work on a “take it or leave it” basis as it is).

      As it was, under current laws I was on a very dodgy individual contract in my last job, employers in that industry don’t need more power.

  8. Francisco Hernandez 8

    Lew has a very good position of my basic position

    http://www.kiwipolitico.com/2010/10/enemies-like-these/

    • IrishBill 8.1

      My response to that post:

      What you’re saying about a mandate makes sense if a union is negotiating on an established site that has employees.

      But.

      There were no AE members who had signed to the hobbit and if there had been they would not have been able to renegotiate.

      What tends to happen in industries that do project work, like construction or film, is the union negotiates a collective or minimum standards deal with the employer before the project starts.

      Usually this is negotiated on the basis the union has the moral authority to negotiate for all workers in the industry (and AE has more than 600 members) and usually it is based on an industry standard.

      If organising and bargaining is left until everyone is hired on a project like this then it is disruptive to the project and difficult for the union and its members.

      Project-based agreements for the oil and construction industries are regularly negotiated before the project starts or anyone is employed. And generally such negotiations begin with a do-not-sign notice as there is no union recommended agreement. Much as a union will recommend its members not sign an inferior individual agreement while they are negotiating a collective. Film is no different.

      Where AE went wrong was turning a do-not-sign into a boycott and in having no PR strategy and bugger all industrial strategy.

      this does not mean they were operating outside of the realm of ordinary industrial relations. It just means they weren’t doing a very good job of it.

  9. just saying 9

    http://thehandmirror.blogspot.com/

    This piece is so good I’ve linked to it in Open mike as well.

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