A couple of troubling questions on the Hobbit Bill

1.   Who was telling the truth, John Key or Gerry Brownlee?

Here’s John Key:

“On the labour law side it’s looking more optimistic”.

He said some of the advice was that it would require a law change to give Warner Brothers the clarity they wanted around labour laws.

 And here’s Gerry Brownlee

“Warner Bros did not put any requirements on us to do anything. The New Zealand Government has recognised that there were employment issues that needed to be sorted out, and we are going to move to clarify those.”

 They can’t both be right!  So who is?

 2.   How does this legislation clarify the law as to who are contractors and who are employees in the film industry? 

The provision of the law passed states [the definition of employee]: 

 “(d) excludes, in relation to a film production, any of the following persons:

“(i) a person engaged in film production work as an actor, voice-over  actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer:

“(ii) a person engaged in film production work in any other capacity.”

(2) Section 6 is amended by inserting the following subsection after subsection (1):

“(1A) However, subsection (1)(d) does not apply if the person is a party to, or covered by, a written employment agreement that provides that the person is an employee.”

Now what happens when the “contract” has a clause that says the worker is an independent contractor, but the other clauses in it provide  for conditions of work that that define the working conditions of the “contractor” to actually be those of an “employee”, and the purpoted contract actually an employment agreement?

How I see it, is that this creates a legal cause to go to the Employment Court to resolve the issue over whether a person engaged to work on a film production is, in law, a “contractor” or an “employee”. 

So much for this Bill “clarifying” the law – it seems to me to make the law  more confusing and more subject to litigation. 

9 Comments Posted

  1. !/ Frog says ” They can’t both be right! ”

    Of course they can.

    In your quote, Key never said Warners “required” the change – all he said was they wanted clarification.

    2/ It’s pretty simple really. It says everyone is a contractor except those who have employment contracts.

    What’s ambiguous about that?

    I’m surprised you are “troubled” by both of these non-issues

  2. Actually not (as near as I can tell) just the first one. Although it may be that having blocked it from the first, it will finally eat the last should I skip one of the dots. I hadn’t noticed the behaviour to such detail, just that the first linefeeds go, even if I put in 10 of them… and it HAS been 6 months… because I am a really patient person about some things.

    You mean that if I use Opera I will see the feeds or that if I use Opera the feeds will be put in properly? Hmmmm… must be the latter. This is an input problem. Opera isn’t bad and I’ve had it before when FF had a little problem. This problem isn’t that big and is only here so (though I post here a lot) I probably won’t run dual browsers.


  3. If you take the 2000 act and actually modify it as the bill does, then it is clear that there is no conflict of the sort suggested by Frog.

    The new Section 1(d) comes at the same level of logic that excludes volunteers. Thus Section 2, the Section that requires the “duck test” to be made can never come into play for film workers unless the contract specifically states it is a Contract of Employment. This is because for Section 2 to be invoked, Section 1(a) has to be in play, and because of the new Section 1(d), 1(a) is false for film folks.

    If this logic were broken, then it would have been apparent and already addressed and redrafted in Section 1(c) dealing with volunteers.

    So no room there for a row. And even if there were, when the Courts are interpreting the satutes in the generation of case law, they get to try and work out what was Parliament’s intention. And in the case of this Bill ammending the Employment Relations Act 2000 in relation for film industry workers, there is absolutely no doubt what it is the legislative intent.

    Of course, for a film production employee the duck test is moot anyway, either because he has a contract of employment and thus the duck test is unnecessary, or he isn’t an employee, and the duck test is excluded from being applied.

    It is perfectly possible that a worker’s contract may contain any or all of the items that for a person that in any other line of work would be taken (using the duck test) as indicators of employment, but that has no bearing on the status of a film industry worker being an employee or a contractor, as the duck test is never applied.

    That is the entire purpose for this hastily thrown together but adequate piece of legislation: to allow workers who would otherwise be subject to the duck test to avoid it altogether. More specifically; the Bill codefied the existing arrangements that the film production industry has used for many years.

    None of which suggests that the Bryson judgement was anything other than absolutely correct, the way the law was up until yesterday.

    (And I too get really grumpy about the first paragraph bug)

  4. Frog

    It has become apparent that the interface is swallowing every effort to intentionally break things up with line-feeds. I am getting a bit fed up with the amount of trouble it is to create separate paragraphs. Particularly the first paragraphs.

    [frog: Actually, bj, it’s only the first line-feed that gets eaten and only by Firefox, so far as I can tell. I’ve just checked Opera and no issues there. It has been like this since the last upgrade at least six months ago, but no one has complained until now.]

  5. Both could be correct, if someone talked to Key and not to Brownlee, and that is a possible scenario. Yes, they were both at the same meeting, but they are not both the same person and the side-talk might have included this… though I have no clue as to who suggested the change 🙂 …

    I would suspect this was a bit of a finesse from Key, telling WB that he was going to do this… and that the reason for him doing it was for PR more than anything else (given the nature of your 2nd part of the question, as the law change does NOT do much, does it…) – In other words, you and everyone else in Parliament were dragged through yet another “under urgency” law change and debate, with an intentionally moot end result. The whole point wasn’t to do something but to be SEEN to be doing something. A bit of theater.

    Consider that if there had been no “requirement to clarify the law” people might have focused on the other issues entirely and the government would look far less decisive. Simply giving more of a tax break. This was simply milking the situation for all it was worth… which we know they were going to do once the initial mess was created.

    I think that this whole business is a lost cause in terms of the union movement here. I don’t see any way to make a positive political issue, or even a positive statement of principle out of it.


  6. It is a well established common law principle that if two parties are doing all the things they would have done if a contract existed. A contract may be deemed to exist even though there is no written or formal contract.

  7. There has been case law in the past (I forget the name of the case) that says a contract will be interpreted by the way it acts – rather than what it says. This suggests that any court action would find that the contractor would be deemed as an employee even if the contract says different.
    I am not a fan of National, but I do feel they did what they had to do in order to keep the hobbit in NZ. It isn’t ideal but the other option was much worse.

  8. On point 2, agreed, frog.

    The Bryson judgment made it perfectly clear. What’s more, it was from the Supreme Court, so could not be appealed or relitigated.

    This amendment muddies the waters, rather than clarifies the law. Which makes me wonder whether Warner Bros actually did want it, or if it is just a stalking horse by the Nats to further undemine employees’ rights.

    On point 1, I don’t have a clue.

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