Employment Relations (Film Production Work) Amendment Act
The change to our employment law rushed through under urgency by the National government in a bewildering response to the NZ Actors’ Equity industrial action on The Hobbit, represents an interesting approach to lawmaking in this country. The joke about the government lowering the age of consent to thirteen to allow Roman Polanski to make his next film here, while a little distasteful, draws a useful parallel illustrating the insanity of the government bowing to the makers of a film.
The new Act amends the Employment Relations Act 2000. It primarily operates by excluding a new group from the definition of ‘employee’ (section 6 of the main Act). The new provision excludes performers (including actors) who are engaged in film productions from being defined as ‘employees’ and then goes on to exclude everyone who works on a film production ‘in any other capacity’.
Film production work is defined in the amendment to cover services provided by performers and anyone else in prep, production and post, on and off set. Promotional and advertising services are also included, but only when carried out by performers.
The definition of film production work in the amendment excludes “the production of any programme intended initially for broadcast on television” but includes the production of video games. So television productions are not covered by the new law, but theatrical films and video games are.
As people engaged in film production work ‘in any other capacity’, techos engaged outside television are clearly covered by the new legislation. So what does this new law mean for you? Well, unless you and the production company agree that you are engaged explicitly as an employee, you will be regarded by the law as a contractor with no right to challenge this in court. Previously, it has always been up to a court to decide who is and who is not, an employee. This law takes that discretion away from the court.
There are several puzzling things about this new law. One is the distinction between production for television and other purposes. The process for making a film for television is no different in principle to the process for making a similarly budgeted film for theatrical release. From a legal and policy perspective there seems to be no reason why people providing services to a theatrical film should be subject to one set of employment laws while people engaged on a television-feature production are subject to another set of laws.
But the most puzzling thing is why the new law was needed in the first place. As noted above, it was introduced by the government in response to the dispute between Warner Bros and NZ Actors Equity over The Hobbit. The new law (and an additional contribution to the studios’ production and marketing budgets) was said by the government to be needed to persuade studios to keep the films here following the stink kicked up by the actors. But the funny thing is, the actors’ employment status was never at issue in the dispute. No New Zealand actor that I’m aware of has ever contested their status as a contractor and I can’t imagine them ever doing so. They like being contractors.
The only person I know of in the industry who did contest their status as a contractor was James Bryson, a model-maker employed by the production company behind The Lord of the Rings. Mr Bryson’s claim was the subject of much consternation in the industry at the time. Very strong submissions were made to the Court (by 3-Foot-6 lawyers) suggesting that it could spell the end of foreign productions coming to New Zealand if the Court were to find in Bryson’s favour (where have I heard that before?) Although the case was expressed by the Court to be restricted to its facts and without general application (i.e. not setting a general precedent), it was treated by some in the production industry as a rogue decision that could harm New Zealand’s international reputation.
It might be clear by now that I was being a little ironic when I said earlier that I was puzzled as to why the new law was needed. I’m actually pretty clear why it was passed; it’s just that the actors’ dispute had little to do with the actual reasons that led to the government passing it. It seems resentment at the Bryson decision still runs deep, and the outpouring of public angst against the actors (with corresponding outpouring of goodwill toward the producers of The Hobbit) provided an opportunity for the government, at the urging of certain parties, to revisit the case.
As a lawyer, I greatly object to this type of ad hoc lawmaking. The change was prompted by the demands of an overseas company, and the people of New Zealand did not get an opportunity to be consulted about, much less participate in the process. The law we had was working fine. The production industry was not riven with contractors trying to claim employee status. The Bryson case, according to the very smart judges in the Supreme Court was a genuine case of a man who was being denied his legal rights. That’s the reason we have courts and the rule of law; so that our legal rights are placed above the Machiavellian manoeuvrings of the parliament of the day.
Despite the negative publicity around the case, it actually involved a fairly routine application of well settled and long-standing principles of employment law. Basically the approach encapsulated in the decision is: if it looks like a duck and quacks like a duck then it is a duck (unless it’s a shelduck – hat-tip to Love Birds).
The fundamental difference between contractor and employment status is that a contract is (in theory) a straight commercial deal between equals and an employment contract is between a ‘master and servant’ (quaint phrase but still in use). In legal terms an employment contract is a contract of service (a broader definition than) the other which is a contract for services.
The key difference is between ‘providing services’ and ‘serving’. An employer has additional rights of control over an employee that they generally don’t have in a contract of services, with an associated responsibility of care. This is encapsulated in the duty of good faith that the parties have to each other in employment contracts. Some employers want the control associated with being an employer but not the extra responsibilities that come with the duty of good faith. So they call the person a contractor, thereby avoiding responsibilities of care, but build into the contract all the usual obligations that come with being an employee. The courts have always (until now) had the ability to look at a relationship like this (on the application of one of the parties) and make a decision about what it really is.
Although for many techos this law change is not a big issue (as they prefer to be contractors in any case) the Bryson case does show that there are people working as contractors who are actually entitled to the additional benefits that employment status provides. (Editor: Some would go further than this, arguing that more features of employee status apply to individual screen workers on many productions than those typically associated with contractor status. Consider this: Compared with the plumber you might call to your house, how much freedom do you have to set your terms of work?)
Within the big umbrella that covers all screen workers typically called techos, are the people who I think are most likely to claim employee status (and therefore the people who lose as a result of the law change). People like Mr Bryson – engaged on one project (or several projects with the same employer) for a long time, who turn up to the same place at the same times five or six days a week and not free to concurrently provide services to other people [Editor: Sound like your work situation?… What about these other indicators: Can you hire other people without consultation? Who makes the profit or loss on the job? Are you bound to one employer at a time? Who controls how and when the job is done? Just saying…]
There is therefore, a terrible irony in the actions of those techos who attended the Weta meeting and subsequent march on 20 October last year. The people on this march (other than those amongst them who were employers) stood to lose the most from the government’s subsequent response. The fact we now know, that the game was already a dead rubber – NZ Actors Equity and Warner Bros had already settled their differences and reached agreement – just makes it worse. If you have any doubts about this read the email from Peter Jackson to Gerry Brownlee’s office dated a couple of days prior to the march, which states the actors’ threatened boycott had nothing to do with the decision on where to make the films.
