Written By: - Date published: 12:24 pm, October 29th, 2017 - 70 comments
Categories: Abuse of power, jobs, john key, journalism, national, national/act government, Politics, same old national, spin, the praiseworthy and the pitiful, Unions, workers' rights - Tags: actors equity, helen kelly, hobbit, Iain Lees-Galloway, jennifer ward-lealand, peter jackson, the hobbit, warner bros
It has been announced that the Labour-New Zealand First-Green government is going to, as a matter of urgency, repeal the Hobbit law, urgent legislation enacted by National in 2010 in a clumsy attempt to stop workers on film sites from acting collectively.
I hope they do. With a few others I would like to jump up and down and dance on its grave and remember the victims and curse the villains.
And I hope there is a sophisticated analysis by the main stream media of what happened and why repeal is important. But I will not hold my breath.
If they want to understand what happened then I suggest that they review the Standard posts from the time. I thought that this was the time when the Standard really started to shine and show that a public platform for progressive analysis, comment and debate was a good thing.
The cause of the dispute was relatively mundane although in principle it was important.
A worker for Three Foot Six Limited, Jackson’s company, had issues with his contract. He had a longstanding employment contract with an associated company. His employer had supplied what it thought was a contract for services for him to sign but this was given six months after he had started work. He was made redundant and then pursued a personal grievance, something he could only do if he was an employee as opposed being under a contract for services.
For a reason that I cannot comprehend litigation concerning the status of his contract made its way all the way to the Supreme Court. If Jackson had decided to pay him rather than Jackson’s lawyers then I am sure the matter would have been resolved quickly and economically. The cost in legal fees must have outweighed the potential liability by a considerable margin. And for all of the other workers who may or may not have been covered a constructive approach and careful drafting where new contracts were negotiated should have solved things.
But Jackson took umbrage at the original Employment Court ruling. And had to fight it all the way.
A full analysis of all of the circumstances of the contract was performed by the Supreme Court and it was held that the worker was an employee.
The weird thing is that the Supreme Court decision was given in 2005. There was lots of time to review and change contracts with people working in the film industry. But nothing happened for another 5 years.
Then in 2010 when preparations for the filming of the Hobbit in New Zealand were being made Actors Equity indicated that it wanted a collective deal for local film workers. The implications were significant for them but rather minuscule for the film industry in terms of its overall budget.
Jennifer Ward-Lealand, then president of Actors Equity characterized Actor’s Equity’s intent in these terms:
Our members are simply seeking fair and equitable employment terms for New Zealand actors, in line with the terms and conditions that their colleagues elsewhere in the world enjoy…. Many have no cost implications for the production, and the overall impact of our demands is miniscule for a production of this size.
She believed a solution could be found if producers would sit down “calmly” with the union and discuss the issues.
Peter Jackson thought otherwise. He refused to meet Actor’s Equity and his spokesperson said this:
“The simple fact is we can’t,” Matthew Dravitzki told NZPA. “The equity want to meet with Peter and Peter is one producer in a country of many producers and anything we agree to do in that meeting, would have an effect on everyone else working in this industry. And not everyone is working on a multi-million dollar production.”
Mr Dravitzki said the union wanted to set a precedent with The Hobbit that would affect everyone else in the industry, “and that can’t happen”.
This was published on October 1, 2010.
All hell then broke loose. Peter Jackson said that Warners were thinking of taking the filming of the Hobbit overseas. New Zealand faced the prospect of losing the precious …
On October 2 IrishBill published this post and accurately predicted how the dispute would develop:
The playbook is an old one but one that is tried and true:
1. Find a way to demonise the union as an interfering third party (in this case bullyboy Aussie outsiders)
This is an essential story to set up from the start because it takes the public focus away from the the workers involved – a move that makes it hard to humanise the dispute and misdirects from the main point of the dispute (in this case the workers’ desire for minimum standards)
2. Claim the union has no mandate (in this case claiming it has no legal right to bargain and low membership)
This continues the outsider narrative and drives a wedge between union and non-union workers.
3. Threaten capital flight.
This pushes the wedge between union and non-union workers deeper and, in the case of a national industry, helps set the public against the union.
4. Keep moving the goalposts.
The news cycle is fast and shallow. If you can keep setting up new stories with different anti-union angles you force your opponents to be constantly reactive which drains their resources and keeps them on the back foot. It also works to keep the focus away from the the core dispute.
5. Play to your strengths (in this case the saint-like reputation Peter Jackson has)
I think it’s interesting to see Jackson has not appeared on radio or TV or, as far as I can tell, spoken directly to journalists at all. I suspect this is because his handlers have decided he would not be sympathetic talent in the flesh.
6. Get it over and done with as quickly as possible.
It’s hard to sustain the moral high ground for long with spin, over time the facts start to catch up and public opinion turns against you.
And that is exactly how it developed. The threat of loss of the movie was extraordinary. Seeking basic contractual levels which overseas jurisdictions enjoyed should not have been a deal breaker. And moving the movie which was by then almost ready to start seemed to me to be a gross overreaction.
Over the last couple of weeks Actors Equity has been quietly negotiating for a minimum standards contract for the Hobbit.
Things were looking good. So good in fact that the union had agreed to withdraw advice to their members that they don’t sign. They even drew up a joint statement to announce this. A statement that was drawn up with the producers, finalised last Sunday and was to be released early this week. As I understand it this statement was co-written with Peter Jackson himself.
Last night Jackson, and other employer reps decided to launch a broadside attack on the union claiming they had single handedly destroyed the New Zealand film industry and that the film is likely to go overseas. These claims have been widely reported verbatim.
AE is a small union up against a powerful corporation and they could have done a better job of a lot of things including getting their message out but the kind of bad faith and aggression that has been shown by Jackson and his team is astounding and cynical and sets a new low for employment relations in New Zealand.
Just after this post went live on Radio New Zealand co-producers and co-writers of the movie Fran Walsh and Philippa Boyens claimed that definite arrangements were being made to move the movie overseas. They accused Helen Kelly of lying and referred to the Screen Actors Guild website where the advisory notice still appeared. Helen’s instant response was brief but clear. The boycott had been lifted. They were waiting for Warners to confirm when a jointly agreed press release could be released publicly.
Here is where it gets really dark. Helen Kelly subsequently released emails showing that the matter had been settled. All they were waiting for was for Warners to agree to the release of the terms. That they held up the release and went nuclear at the same time suggests very bad faith bargaining.
Kelly predicted that Warners would use the dispute to attempt and get further financial benefits from the Government. How prescient her prediction was. And looking back on it how bizarre. To settle an already settled industrial dispute Warners were going to ask the New Zealand government for more money.
IrishBill on October 23 summarised the situation in this way:
There’s still a bit to play out now but everyone I talked to said the smart money is on the Government increasing the tax breaks to keep the film here. Given Fran O’Sullivan was already softening the ground for this today, I’d tend to agree.
There’s no doubt this is a hell of a mess and I expect the government will try to land it at the feet of the union because if they don’t it’s going to look like they got their arm twisted by a big Hollywood studio. And to be fair, AE were pretty amateur hour on this one.
But they weren’t the only ones, the truth seems to be that New Zealand got taken by a well organised and very aggressive production studio. And all for a tax-break that probably should have been offered in the first place. It just goes to show there’s no business like show business.
And so it came to pass. Senior Warner representatives flew to New Zealand and were limousined to Government House where the deal was done. Anthony Robins made this prediction just before and this conclusion just after the big announcement about the deal.
Here’s my prediction. Key will roll over and sell New Zealand’s employment law for thirty pieces of silver. He will have moved on tax breaks too, something moderate, enough to feed a significant quantity of taxpayer’s money to the studios, but he’ll be allowed to save some face. The Hobbit will stay in NZ.
Here’s my conclusion. Key has been played like a cheap violin. He piled in against Kiwi workers right from the start. The studios saw we had a muppet for a PM, and saw how easy it would be to exploit him to score a cheap few million. So they did.
But National had a problem. You don’t just pay $33 million to an overseas corporation without political risk. Someone else, preferably associated with your opponent had to be blamed.
And so National proposed urgent legislation to change the status of people working in the film industry to independent contractors and to suggest that this was the problem all along. Urgent legislation to reverse the effect of the Bryson decision would be enacted.
As IrishBill noted:
[J]ust a quick note on the contractor change – the union took the action despite nearly every one of its members being an independent contractor. While this is arse for film industry employees (the few there are) it doesn’t really change a thing in law in relation to the Hobbit. In short it’s a meaningless distraction from the real issue of tax cuts.
But even this was fraught with problems. National mucked up the drafting of the bill. The amending bill said that people working in the film industry would be contractors but this did not apply if they were covered by an agreement that provides the person is an employee. That was exactly the problem that Bryson resolved. Arguably it did not change anything.
Labour MP Charles Chauvel was in a particularly good position to comment on the bill. He was one of the counsel involved in the Supreme Court hearing of the Bryson case. During the parliamentary debate on the bill he said this:
I can assure every member here that the [Bryson] case was fully argued, as the 20-page judgment from Justice Blanchard indicates. There is proof of the soundness of the decision of the court in the fact that the Bryson case was the last appeal, 5½ years ago, to have been heard on the question of how to resolve whether a workplace relationship is one of employee or contractor. The law reports do not contain another such case. The appeal settled the proposition that the law that has characterised an employment relationship at least for the past century in this country was unchanged by the Employment Relations Act. The law is this: all the attributes of the employment relationship have to be considered, not just the label attached to it by one or the other of the parties, whether at the start of the relationship or at some point while it is on foot.
This law has served us well. When I was in legal practice, my international employer clients, especially those from the US, Europe, or Australia, were generally struck by the flexibility that New Zealand law gave them in being able to set up business arrangements here. All that is needed is to take care to properly and honestly document the relationship at the outset.
The background that I have just described makes this amendment all the more outrageous, even before we consider the circumstances of its introduction. The lack of a basic understanding of the law that we have heard exhibited by Government speakers, including the Minister of Labour, just makes it worse. This amendment deprives workers in the film industry of the right to bargain collectively, by specifying that they should always be treated as contractors. But then it goes on to undermine that primary provision by specifying that if a worker is a party to an employment agreement, then he or she shall instead be an employee.
He finished by saying this:
People thought that they were choosing a brighter future under this Government. They thought that members opposite were ambitious for New Zealand. But once the euphoria of retaining The Hobbit in New Zealand wears off, and once all the union-bashing blood-lust dies away, people will be pretty disappointed with what remains: a Government that has reduced New Zealand, in the words of the Financial Times today, to the client status of an American film studio. People will realise that only under a Labour-led Government will Kiwis have any hope of owning their own future.
Given all of this background it is no wonder that Labour wants to rid the statute books of this law.
Labour’s pledge to repeal the Hobbit law has been met with cheers from Actors Equity. From Radio New Zealand:
Actress and president of Equity New Zealand Jennifer Ward-Lealand said the time of the boycotts was ‘horribly extreme’ and the law should never have been passed.
“That certainly wasn’t something that we were challenging at all at the time… a change to the employment status of actors.
“We were just looking at the terms and conditions on the movies being equal to our overseas colleagues, so that law sort of literally came out of left-field.”
She said the law led to a significant deterioration in conditions for workers in the film industry and repealing it would stop the ‘race to the bottom’ actors faced.
“I think there were so many scare tactics that somehow this bunch of actors were going to send this production offshore when I think we all know that productions will go where rebates are good.”
In a text message to RNZ, Outrageous Fortune actress Robyn Malcolm said she was delighted the law will be repealed and that she cried in the airport when she heard the news yesterday.
“It was a hellish time for all of us and I am so happy that our new govt [sic] has seen to right this wrong straight off the bat.”
She described the National government’s decision to change the labour laws for a Hollywood production company as “nothing short of embarrassing”.
“The ONLY protection actors have is our ability to collectively bargain. This is a very unusual, inconsistent and potentially very exploitative industry. Actors really want to work and if the conditions they work under aren’t protected then the entire profession is eroded,” she said.
She said she wished her friend and trade unionist Helen Kelly, who campaigned against the change in labour laws, was alive to see the the news.
The intent of the Act, to prevent workers in the film industry from engaging in collective action, is reprehensible and breaches all sorts of international conventions on the rights of workers. The law was a blatant attempt to denigrate and blame others for the mess the Government made of the issue. Repealing it quickly is the only right thing to do.