The Dim-Post

October 28, 2010

The Hobbit Bill

Filed under: Politics — danylmc @ 4:53 pm

Is online here, as you’d expect from the urgency and lack of process it doesn’t make a whole lot of sense. From the general policy statement:

This Bill amends the Employment Relations Act 2000 so that workers
involved with film production work will be independent contractors
rather than employees, unless they choose to be employees by entering
into an agreement that provides that they are employees. Film
production work includes production work for video games, but not
production work on programmes initially intended for television.

So if you’re an actor working on a television program then you are covered by different employment law than your next job on a movie – but if you’re a programmer working on a video game tie in to the film then you’re covered by the same law as the actor on the movie set, but that changes if you get a job coding for a non-video game related project.

I’m not sure as to whether this covers the entire video game industry or just film tie-ins. I also wonder if the wording in the law:

film means a cinematograph film, a video recording, and any
other material record of visual moving images that is capable
of being used for the subsequent display of those images; and
includes any part of any film, and any copy or part of a copy
of the whole or any part of a film

means that anyone could stick a camera in their office and film their employees and then claim that they are exempt from the ERA because they are making a film.

Andrew Geddis asks:

How does that law change, purportedly meant to put Warner Brothers minds at ease about our industrial relations landscape, have anything at all to do with the actor’s actions that allegedly kicked all of this off? Because I can’t for the life of me see any linkage whatsoever.

My guess is that by the time they were sitting at the table with the PM the dispute was no longer an issue except as a bargaining ploy by Warners: ‘we need large tax breaks to offset the increased risk we’re taking in filming in a country with such uncertain labour laws’. And Key’s response – and the piece of legislation they’re passing – was just another ploy: ‘well we’ll just fix up our labour laws so that risk doesn’t exist for you  any more.’

About these ads

24 Comments »

  1. Very many offices already have security cameras, so that’d be covered anyways. Offices that don’t yet have that can rectify this for a couple of tenners, making that a webcam, to make sure they’re broadcasting continuously. Plenty little loopholes there.

    Comment by bez — October 28, 2010 @ 4:59 pm

  2. The ‘problem’ to be fixed dates back to 2005 (Bryson case).

    So naturally, the law was written on Tuesday night (“overnight”, said Key – so maybe Wednesday morning.)

    It was given to MPs at lunchtime today. The public saw it this afternoon.

    It will become law tonight.

    But if you express the slightest concern about this … well, You Hates Hobbitsss!

    Comment by sammy — October 28, 2010 @ 5:15 pm

  3. “And Key’s response – and the piece of legislation they’re passing – was just another ploy: ‘well we’ll just fix up our labour laws so that risk doesn’t exist for you any more.’”

    Except, of course, the “fix” doesn’t really remove the original risk. Actors still could, if they really wanted to, walk off The Hobbit mid-shoot in demand of more money, etc. They’d be in breach of contract, of course, but nothing in this law change touches on the issue at all. The only way to stop this “risk” would be to make The Hobbit an essential industry and prohibit anyone breaching their contracts – not that I’m suggesting anything …

    What is changed by this amendment is that a technician or even receptionist working for a film making company will be considered an independent contractor if their bit of paper has “Independent Contract” written at the top of it … even if they’ve solely worked for that company for a decade, 9-5, five-days-a-week. Which, again, had nothing at all to do with the original actor’s dispute/claims.

    Comment by Andrew Geddis — October 28, 2010 @ 5:41 pm

  4. I write software that uses video cameras to automate manufacturing (the machines use cameras to make decisions, like robots). One of the things that software does is record the video it takes for subsequent playback.

    I’m fine because I don’t think making the system counts as pre production, but what about those who operate the system in their manufacturing jobs? They are, amongst other things, recording video for later playback.
    Lawyers? Thoughts?

    Comment by ken — October 28, 2010 @ 5:59 pm

  5. What that does is give the actors certainty about their position tax wise and removes the unions bargaining chip with them, so in effect does give the studios more certainty around less union leverage. Or have I missed something?

    Comment by leon — October 28, 2010 @ 6:03 pm

  6. That’s a comment to Geddis.

    Comment by leon — October 28, 2010 @ 6:09 pm

  7. Not sure, leon, ’cause I don’t understand what you mean by “removes the unions bargaining chip with them” … can you clarify?

    Comment by Andrew Geddis — October 28, 2010 @ 6:38 pm

  8. I imagine one of the levers the unions used with the proles was “if you’re an indy contractor you’ll get screwed by the revenue so you may as well throw your lot in with us” re: collective contract bargaining etc.

    Comment by leon — October 28, 2010 @ 6:49 pm

  9. You might imagine that, but it ain’t what was happening with the actors (there was never any suggestion of them seeking to change status from independent contractors to employees) and the law change won’t stop it happening with any other workers in the industry (i.e. they could seek to renegotiate their relationship from independent contractor to employee, with or without union backing).

    Maybe this was a sop to try to make nice to Warners … but if it was that, then let’s call it that. It just wasn’t anything to do with “solving” the actors dispute.

    Comment by Andrew Geddis — October 28, 2010 @ 7:04 pm

  10. No it’s not anything to do with solving the actors dispute but you see the logic in what I described ie the law changes appearing to mitigate some risk in the regard of removing union levers with actors

    Comment by leon — October 28, 2010 @ 7:15 pm

  11. …one of the levers the unions used with the proles…

    Yeah, but we’re talking about the real, actually-existing world, not the fantasy one you’ve got running in your head.

    And Key’s response – and the piece of legislation they’re passing – was just another ploy: ‘well we’ll just fix up our labour laws so that risk doesn’t exist for you any more.’

    Because that’s apparently how lawmaking works these days. You pull something out of your arse for some dubious purpose, scrawl it down and shove it through Parliament under urgency. The sweet smell of good governance, eh?

    Comment by Psycho Milt — October 28, 2010 @ 7:51 pm

  12. The sweet smell of good governance, eh?

    Leaders sometimes don’t act in the best interest of the people be they union organisers or MPs.

    Comment by NeilM — October 28, 2010 @ 7:59 pm

  13. suck it up milt

    Comment by leon — October 28, 2010 @ 8:01 pm

  14. This law isn’t about fixing the risk of boycott or walk out – it’s just another sweetener like the tax rebate and marketing payout. Basically they can force people down the contract route, treat them in a way that would be illegal under employment law, and not worry about it coming back to bite them. Want to be an employee? Sorry, not on offer – corporate supplier contract or nothing.

    Comment by garethw — October 28, 2010 @ 8:03 pm

  15. What the law is about is making it so somebody doesn’t take a job as a contractor, then have issues for what ever reason, decide that they have a better chance of fighting if they were an employee, and then taking their employer to court and getting themselves declared an employee (as was done) even though they signed up as a contractor.

    I don’t like it that people in some industries are getting forced to sign up as contractors rather than being offered a job as an employee, but how can any firm who relies on contractors expect to safely operate if at any stage one of their contractors can turn around and state they are now an employee!

    You hire a contractor to take your rubbish out, you don’t all of a sudden want to be hit with a sick day, 6 months maternity leave, bereavement leave, and what not at your expense. You expect issues like this to be taken care of by the contractor’s firm, that’s why you hire a contractor. People who hire themselves out as contractors need to take these factors into consideration themselves, and charge accordingly.

    Being a contractor isn’t just doing your own tax, its running your own business and providing a service, at an agreed price/charge rate to who ever contracts your firm. All Warner want to know is what they are getting when they are hiring contractor.

    I don’t believe normal employee positions should be contracted, but I believe laws involving contractors need to be cleared up, and not just for film.

    Comment by Max — October 28, 2010 @ 9:16 pm

  16. @ Andrew Geddis:

    Except, of course, the “fix” doesn’t really remove the original risk. Actors still could, if they really wanted to, walk off The Hobbit mid-shoot in demand of more money, etc. They’d be in breach of contract, of course, but nothing in this law change touches on the issue at all. The only way to stop this “risk” would be to make The Hobbit an essential industry and prohibit anyone breaching their contracts – not that I’m suggesting anything …

    What is changed by this amendment is that a technician or even receptionist working for a film making company will be considered an independent contractor if their bit of paper has “Independent Contract” written at the top of it … even if they’ve solely worked for that company for a decade, 9-5, five-days-a-week. Which, again, had nothing at all to do with the original actor’s dispute/claims.

    Anyone could walk off the set, independent contractor or employee. And both could be sued. So it cannot ever be solved.

    In terms of the query regarding the receptionist, the Bill defines who is involved in film production work, and receptionists aren’t included.

    Comment by Nick K — October 28, 2010 @ 11:02 pm

  17. Nick K,

    Thanks re the receptionist point – hadn’t bothered to check. And I agree re the “anyone can strike” point – which makes the whole “we’ll legislate to fix the actor problem” idea redundant. So again – how does what the Government is doing relate to the original dispute?

    Max,

    It’s not quite so easy for a person hired as a “contractor” to just turn round and say “I’m actually an employee” … they actually have to BE an employee (in terms of their conditions and circumstances of work). So your rubbish collector who comes in once a day, picks up the trash, then leaves won’t meet the relevant tests (as laid out by the Supreme Court in the Bryson case), thus any claim to sick pay/leave entitlements just won’t get off the ground. But there will be a bunch of “contractors” who are hired on “take it or leave it” deals who DO meat those tests – i.e. are employees in reality, it’s just the bit of paper says different.

    Now, it may be there is some gray area/a measure of uncertainty as to just who meets those tests, but has that REALLY crippled the film industry – and if so, how did Avatar manage to get made?

    Comment by Andrew Geddis — October 29, 2010 @ 8:00 am

  18. The only people it affects are film technicians on long term contracts who pass the test of “reasonable expectation of ongoing employment” that would qualify them as employees. These people have had 5 years to make this claim and haven’t done so – instead they rally, twice, in support of the studio.

    This law change is classic misdirection, National could not make a deal that was all about the money after framing the issue as a union problem. So they put in this meaningless law change that the film technicians don’t care about, and the studio doesn’t care about as a hook upon which they dangle the narrative that it’s still an industrial relations matter.

    Labour, the Greens, Helen Kelly and various LW commentators have all fallen for it and bitten into the hook with abandon, claiming ridiculous things like receptionists becoming contractors etc. In doing so they’ve ensured that the deal continues to be talked about as “sticking it to the unions” by the masses.

    Comment by JB — October 29, 2010 @ 8:44 am

  19. @ NickK 11:02 pm

    I don’t think you are right. The amendment provides that the definition of “employee”:

    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.”

    This debate highlights very well why law changes such as this should not be done under urgency. It is likely to create uncertainty, rather than remove it.

    Comment by toad — October 29, 2010 @ 8:53 am

  20. I think its just the studios making sure the unions have less chance of disrupting production. You could argue that it’s unnecessary and an over-reaction but given how the unions have acted it’s not surprisong.

    The sudios work with unions all the time LA. But there unions know what they want and a clear about how to get it.

    Here, the unions did not know what the wanted and had no idea about how to get it. There’s no way that you can work with people who a) don’t know and b) don’t know they don’t know. They’re just dangerous loose cannons.

    Comment by NeilM — October 29, 2010 @ 9:02 am

  21. @NeilM: “I think its just the studios making sure the unions have less chance of disrupting production.”

    You may very well think that. But what is the basis for that thought … i.e. how does the law change effect that result? Because – it doesn’t.

    Comment by Andrew Geddis — October 29, 2010 @ 9:10 am

  22. cheers toad – crucial point. This legisaltion is not about the Bryson case – since 2005 there’s been precisely zero employment cases on the issue – it was never a problem in practice.

    It actually addresses Pjs orginal reason for refusing to meet with the kiwi union – “Piss off – I dont talk to individuals…”

    I think this is right???

    Comment by k.jones — October 29, 2010 @ 9:13 am

  23. You guys do realise that this law could quite easily be extended to cover all employees? Especially if National get a second term and a big mandate?

    The right wingers wet dream – every worker an independent contractor – all the tax, ACC, holidays, sick pay, falls on him, the employer doesnt have to worry about anything.

    Wipe out unions and collective bargaining with the stroke of a pen.

    Comment by millsy — October 29, 2010 @ 10:40 am

  24. John Key is the best Prime Minister money can buy

    Comment by kahikatea — October 29, 2010 @ 12:50 pm


RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

The Rubric Theme. Create a free website or blog at WordPress.com.

Follow

Get every new post delivered to your Inbox.

Join 418 other followers

%d bloggers like this: