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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    Current and former NZDF top brass are being publicly grilled this week by the hit and run inquiry over their public responses to allegations of civilian casualties. Previously, they've claimed there were no casualties, a position which led them to lie to Ministers and to the public. Now, they're saying ...
    No Right TurnBy Idiot/Savant
    1 week ago
  • “Homosexuality is same-sex attraction and relationships, not heterosexuals with delusions of gende...
    by Rafael D. Quiles (gender-critical gay man from Puerto Rico) The writing on the wall is right in people’s faces and people just don’t see it or don’t want to. What could actually possess a heterosexual male to want to feminize himself and claim that he is a lesbian? Because ...
    RedlineBy Admin
    1 week ago
  • Trump: “Where’s my favourite dictator?”
    From the Wall Street Journal:Inside a room of the ornately decorated Hotel du Palais during last month’s Group of Seven summit in Biarritz, France, President Trump awaited a meeting with Egyptian President Abdel Fattah Al Sisi. Mr. Trump looked over a gathering of American and Egyptian officials and called out in ...
    1 week ago
  • Magdalen Burns, 1983-2019, fighter for women’s liberation
    by the Redline blog collective At Redline we are very saddened to hear of the death of Magdalen Burns who passed away on the morning of Friday, September 13 (British time). Magdalen was a great fighter for the rights of women in general and lesbian women in particular, a defender ...
    RedlineBy Admin
    1 week ago
  • Parliament and the Executive
    The Brexit issue has certainly brought with it a series of apparently difficult constitutional issues, many of them concerning the respective roles of the executive and parliament. Most of them arise because of the unwillingness of MPs, despite their professions to the contrary, to be bound by a constitutional rarity ...
    Bryan GouldBy Bryan Gould
    1 week ago
  • The Abigail Article; Martyn Bradbury’s Article, and My Response
    . . This blogpost is different to my usual format of reporting on issues… Since July 1011, I have blogged on a variety of political issues; near always political and/or environmental; mostly highly critical of the previous National Government. Other issues included Israeli occupation of Palestinian lands and repression of ...
    Frankly SpeakingBy Frank Macskasy
    1 week ago
  • Police will have to wear silly Buckingham Palace hats from now on, says Police Minister
    Those close to the Police Minister believe the initiative may be the result of Nash “seeing a great deal” on AliExpress. In a move that comes seemingly out of nowhere, Police Minister Stuart Nash announced this afternoon that he expects all frontline staff to don bearskin hats, famously worn by ...
    The CivilianBy admin
    2 weeks ago
  • A sensible crackdown
    The government has released its Arms Legislation Bill, containing the second tranche of changes to gun laws following the March 15 massacre. And it all looks quite sensible: a national gun register, higher penalties for illegal possession and dealing, tighter restrictions on arms dealers and shooting clubs, and a shorter ...
    No Right TurnBy Idiot/Savant
    2 weeks ago
  • California bans private prisons
    Private prisons are a stain on humanity. Prison operators explicitly profit from human misery, then lobby for longer prisons terms so they can keep on profiting. And in the US, prison companies run not only local and state prisons, but also Donald Trump's immigration concentration camps. Faced with this moral ...
    No Right TurnBy Idiot/Savant
    2 weeks ago
  • Why PPPs are a bad idea
    When National was in power, they were very keen on Public-Private Partnerships (PPPs) - basicly, using private companies to finance public infrastructure as a way of hiding debt from the public. They were keen on using them for everything - roads, schools, hospitals. But as the UK shows, that "service" ...
    No Right TurnBy Idiot/Savant
    2 weeks ago
  • A Movement That No Longer Moves.
    Moving And Shaking: There was a time when people spoke matter-of-factly about the “labour movement” – a political phenomenon understood to embrace much more than the Labour Party. Included within the term’s definition was the whole trade union movement – many of whose members looked upon the Labour Party as ...
    2 weeks ago
  • NZ ‘left’ politically embracing extreme postmodernism
    by Philip Ferguson Much of the left, even people who formally identify as marxists, have collapsed politically in the face of postmodern gender theory of the sort pioneered by American philosopher Judith Butler. For Butler even biological sex is socially constructed. “If the immutable character of sex is contested, perhaps ...
    RedlineBy Daphna
    2 weeks ago
  • The obvious question
    The media is reporting that the (alleged) Labour party sexual assaulter has resigned from their job at Parliament, which means hopefully he won't be turning up there making people feel unsafe in future. Good. But as with everything about this scandal, it just raises other questions. Most significantly: why the ...
    No Right TurnBy Idiot/Savant
    2 weeks ago
  • The moment I found out that you found out, I acted swiftly
    By Prime Minister Jacinda Ardern I am every bit as angry as you are. I am every bit as disappointed as you must be. The people with power, oversight and the ability to do something about these processes within the Labour Party should be ashamed. Whoever those people are, I ...
    The CivilianBy admin
    2 weeks ago
  • This is why people hate property developers
    Property developers think there is an "oversupply" of houses in Auckland:High turnover rates and falling prices may be a sign that there are too many new houses going in to some parts of Auckland, commentators say. [...] Property developer David Whitburn said there was a "bit of an oversupply" in ...
    No Right TurnBy Idiot/Savant
    2 weeks ago
  • Australia to Pacific: “Fuck you, you can all drown”
    World leaders are meeting in New York in two weeks for the 2019 Climate Action Summit, where they are expected to announce new and more ambitious targets to stop the world from burning. But the Australian Prime Minister won't be there, despite being in the USA at the time:Scott Morrison ...
    No Right TurnBy Idiot/Savant
    2 weeks ago
  • Implausible ignorance
    Labour Party president Nigel Haworth resigned yesterday over the party's sexual assault scandal. But while that's good news, its unlikely to take away the stench of a coverup. Because according to Paula Bennett in Parliament yesterday, pretty much everyone in the Prime Minister's office was involved as well:I have been ...
    No Right TurnBy Idiot/Savant
    2 weeks ago
  • Labour’s Fatal Flaw.
     Two-Faced? Labour insiders' commitment to the neoliberal status quo puts them at odds with their party’s membership; its trade union affiliates; and a majority of Labour voters, but this only serves to strengthen the perception they have of themselves as a special elite. Among the lesser breeds, they’ll talk up a ...
    2 weeks ago
  • Ten reasons the Tories do NOT want an election
    There has been a lot of talk about Boris Johnson wanting an election, and he has blustered with great gusto about 'chicken' Jeremy Corbyn refusing one, but I think there are many reasons why he is secretly glad he has been refused the opportunity:The Tories are an utter rabble,tearing themselves ...
    2 weeks ago
  • Prorogation Illegal, rule Scottish judges
    Scottish appeal court judges have declared that Boris Johnson’s decision to suspend parliament in the run-up to the October Brexit deadline is unlawful. The three judges, chaired by Lord Carloway, Scotland’s most senior judge, overturned an earlier ruling that the courts did not have the powers to interfere in the prime ...
    2 weeks ago
  • Let me explain what I meant by Everyday New Zealanders
    By Simon Bridges. The following is a press release from the office of Simon Bridges, leader of The National Party. Key ora, New Zealand. Happy Maori Language Week. Look, I’m writing to you today because I want to clear something up. There’s been a lot of kerfuffle around some things ...
    The CivilianBy admin
    2 weeks ago
  • Yes, the SIS is subject to the Public Records Act
    I understand there's some stuff going round about how the SIS "was removed from the list of public offices covered by the Public Records Act in 2017". The context of course being their records derived from US torture, which will be disposed of or sealed. The good news is that ...
    No Right TurnBy Idiot/Savant
    2 weeks ago
  • An evidence-based discussion of the Canadian fluoride/IQ study
    Dr. Christopher Labos and Jonathan Jarry discuss the recent Canadian fluoride/IQ research. They provide an expert analysis of the paper and its problems. Click on image to go to podcast. The critical debate about the recent ...
    2 weeks ago
  • Climate Change: Australia in denial
    Australia is burning down again, and meanwhile its natural disaster minister is denying climate change:Australia’s minister responsible for drought and natural disasters, David Littleproud, has said that he doesn’t “know if climate change is manmade”. Clarifying earlier comments that the question is “irrelevant” when considering the Coalition government’s response to ...
    No Right TurnBy Idiot/Savant
    2 weeks ago
  • Philippines activist speaking on the Duterte tyranny
    Auckland Philippines Solidarity is excited to host Professor Judy Taguiwalo for a speaking tour of NZ in September. She is a well-known activist in the Philippines and was a political prisoner under the Marcos dictatorship. Professor Taguiwalo briefly served as a Cabinet member under President Duterte but was forced from ...
    RedlineBy Daphna
    2 weeks ago
  • Disgust
    I have no special insights to offer on the Labour sexual assault coverup. All I have is disgust. Disgust that an organisation could fail its people so badly. Disgust that they punished the victims rather than the perpetrator. Disgust that its party hacks are apparently blaming the victims for demanding ...
    No Right TurnBy Idiot/Savant
    2 weeks ago
  • Speak Up for Women calls out Greens’ censorship
    This open letter to the Green Party was penned after an opinion piece by Jill Abigail, a feminist and founding member of the party, was censored by the Greens’ leadership. (Redline has reprinted her article here).The intolerance of the Green Party leaders and their acceptance of the misogyny of gender ...
    RedlineBy Daphna
    2 weeks ago
  • Member’s Day: End of Life Choice, part 3
    Today is a Member's day, and David Seymour's End of Life Choice Bill continues its slow crawl through its committee stage. They're spending the whole day on it today, though the first hour is likely to be spent on voting left over from last time. After that they'll move on ...
    No Right TurnBy Idiot/Savant
    2 weeks ago
  • Flight to Los Angeles turned back after passengers decide they don’t want to go anymore
    An ambitious plan to fly to Los Angeles petered out into a brief sight-seeing trip and a desire to return home and get some sleep before work tomorrow. Air New Zealand has confirmed a flight to Los Angeles last night was turned back about a quarter of the way into ...
    The CivilianBy admin
    2 weeks ago
  • Indigenous Futures: defuturing and futuring – an analytical framework for policy development?
    There appears to be consensus – by omission – that the concept of indigenous futures should be accepted at face value. So I scavenged the internet to see if I could locate an academic descriptor or a framework around how we think about it as a concept, and whether it ...
    EllipsisterBy Ellipsister
    2 weeks ago
  • Cadbury rumoured to be releasing the Pineapple Trump
    Here’s another novelty chocolate to shove in your gob, New Zealand Cadbury could be seeking to make itself great again with a rumoured new release: Pineapple Trumps, a spin on its classic chocolate-encased pineapple treat and do-it-yourself tooth remover. The global confectionery manufacturer and bumbling “before” character in an infomercial, ...
    The CivilianBy admin
    2 weeks ago
  • The coming resource war.
    During my time in the Pentagon I had the privilege of sitting down with military leaders and defence and security officials from a variety of Latin American nations. Sometimes I was present as a subordinate assistant to a senior US defence department official, sometimes as part of a delegation that ...
    KiwipoliticoBy Pablo
    2 weeks ago

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