Keith Locke on Employment Relations (Film Production Work) Amendment Bill – first reading



The Green Party is strongly opposed to the Employment Relations (Film Production Work) Amendment Bill. It is a very sad day for New Zealand, because not only is the Government moving legislation through this Parliament at the behest of a foreign multinational, Warner Bros, which is an affront to our sovereignty, but also it is completely abusing the parliamentary process. It is rushing important industrial legislation through Parliament through all stages in a few hours under urgency and is denying all chance for the legal profession, employers, union leaders, and members of the community to make submissions on it. In fact, members of Parliament have had only a couple of hours in which to look at the bill and prepare their contributions. Any other bill sits on the Table for 3 days, which means that members of the public, including those following this debate, have the chance to figure out what the bill is before we discuss it in the House.

There will be a lot of confusion out there among the people listening to this debate on the radio or watching it on TV. MPs are not being given a proper chance to scrutinise this legislation. Industrial legislation is very tricky and complicated legislation. In the Transport and Industrial Relations Committee this morning we finalised a couple of bills: the Holidays Amendment Bill and the Employment Relations Amendment Bill (No 2). Those bills have been around for months and we received many submissions on them. There have been debates on interpretation and it is quite divisive legislation in many respects. That shows the complexity of industrial law, and it is quite wrong to rush such law through Parliament. That is particularly so, as Gerry Brownlee said when I questioned him earlier on today, because Warner Bros has not said that it needs to go through this week. Well, I ask why we are pushing it through this week. Either there is some misinformation there or else we could have a proper select committee process on this bill. I ask what the problem is with having a proper select committee process.

The Minister of Labour said that the bill does not really change anything and that we are just creating some certainty, and I think Gerry Brownlee had a slightly different interpretation, but this bill produces more uncertainty in our industrial relations law because the concept behind this bill is quite different from the concept behind the rest of the Employment Relations Act. That concept was clarified in the 2005 Supreme Court decision of

Bryson v Three Foot Six

, which defined what an employee is. That decision was codified and explained by the screen producers organisation, the Screen Production and Development Association of New Zealand, or SPADA, which produced a little document on what it would mean.

Essentially, the Screen Production and Development Association explains that it is what we would call a duck test, which is if something walks like a duck, swims like a duck, and quacks like a duck, then it is a duck. In this case, the association laid out things such as the control that actors have over their work situation, where it happens, what is done, the timing of it, etc. In reality, a lot of those things are under the control of the director, so in that sense, independent contractors are similar to employees.

Another test the association outlines is the extent to which workers, when going into this job, provide their own equipment, take financial risks related to the production, etc., and generally actors do not do that. So there are a lot of parallels with the work that actors actually do in being employees. This bill goes completely in the opposite direction from the duck test. It says that when the employer, or the film producers, and the actors or people in the film industry in general sign a contract, what they say in that contract—whether the actor is an independent contractor or an employee—is what determines rights from there on. That is quite contrary to the general theme of the Employment Relations Act. Where that puts actors at a disadvantage is that now employers know that under this arrangement they do not need to give actors the right to collective bargaining, they will say that if actors want to be in their movie, they will give them a contract that says they are independent contractors and not employees, and that they can take it or leave it. If they do not take it, they do not get the job on the film. That will mean that these people then lose all rights to collective bargaining in relation to their employer—the film company—and that is a big problem.

It will provide a feast of work for lawyers and judges in the future, who will bring back that Supreme Court decision and look at it as it applies to the Employment Relations Act as a whole. They will say that this amendment is in conflict with that Act, and they will ask whether such a person is an independent contractor or an employee, and will ask what that person’s rights are. It will be a legal feast. That is why we needed to take submissions on this bill, rather than just rushing it through.

There is a whole history of people like actors bringing their skills and labour to a short-term work situation, or a fixed contract. For example, many people in the construction industry get a job on a building for a fixed period of time. They are paid certain amounts and even though they are contractors contracting for that work, they retain rights similar to the rights of employees under the Employment Relations Act. It is also good for the film industry to give film workers and actors more rights. In my experience, the more rights that people have, the more confident they feel, and I think confidence is a big thing in the acting profession. If actors are kicked around and denied their rights, then their work will suffer and the film will suffer. So all of us here—every New Zealander, I think—wants the film of

The Hobbit

to be a success. This debate has never been about whether or not

The Hobbit

should be produced here. Everyone wanted it to be produced, directed, and made in New Zealand. We in the Green Party are saying that it would be a more successful film if the rights of actors and film workers in general were respected and not undermined in this way. I agree with previous speakers. Sometimes over the years we have talked about banana republics and Governments that have been—

Hon Ruth Dyson

Banana constitutional monarchy.


I agree with the interjection. We are not even a banana republic; we are a banana constitutional monarchy. So we have a couple of things on our hands here. The definition of a banana republic was particularly those countries in Central America whose dominant industry was bananas. The big banana companies, like United Fruit in earlier times, or Del Monte, would essentially run the State, because they had such a big weight in the economy. Now we see that New Zealand, a developed economy and a multifaceted economy, is acting in the way of the banana republics.

Warner Brothers comes along and says: “We’re not going to make this film here unless you give us more money and change your industrial laws to suit us, and bow and scrape.” Forget about our sovereignty; forget about our honour. Do we not have honour as a people? We can just say: “Yes sir; no sir.”, and then pretend it is all for the good of the workers concerned. In fact, if we study the Employment Relations Act, it does not have any good spin-offs for this bill. It does not have any good spin-offs. It is in contradiction to the Employment Relations Act, and the Green Party is very opposed to it. Thank you.