Recommendations From the Film Industry Working Group

The Film Industry Working Group (FIWG) was established earlier this year with the goal of recommending how the government should restore the right for film production workers to collectively bargain, in a way that:

(a) allows them to continue working as independent contractors if they so wish;

(b) provides certainty to encourage investment in NZ by film production companies; and

(c) maintains competition between businesses offering film production services to promote a vibrant, strong, and world-leading film industry.

The FIWG released its findings in October of this year. We thought it would be helpful to summarise their recommendations over a couple of articles and explain how they may impact you. This article looks specifically at the recommendations that relate to the so-called “carve out” from the Employment Relations Act 2000 which gives film production workers a default status as independent contractors (as opposed to employees).

1. Default contractors: the FIWG’s first recommendation is to retain the status quo so that film production workers remain independent contractors by default, unless they are party to a written employment agreement that states they are employees (in which case they will be covered by the Employment Relations Act rather than the default independent contractor model). This ability to contract freely and independently, without the involvement of NZ’s employment legislation is particularly important in the film industry which requires a high level of flexibility for several reasons:
2. (a) First of all, because the market for screen production is global, in order for NZ to compete as a production destination with other nations, the contracts of film production workers need to be able to be varied and updated in order to remain competitive;
3. (b) Secondly, a huge variety of productions are made in NZ – from blockbusters to small self-funded productions. There is no single type of production, so a one size fits all contract is not a realistic approach;
4. (c) Finally, contracts need to be flexible enough to account for the highly mobile and changing nature of filming itself. For example, last minute scheduling changes due to weather and light availability. Again, an employment contract governed by the Employment Relations Act is not practical here.
5. Screen Production Work: as the law currently stands, only “film production workers” are considered default contractors under the Employment Relations Act. This includes those who work in video game production, but technically not those who work in television production. The FIWG has recommended using the broader term “screen production worker” to capture those working in productions on all screen formats, keeping in flux with changes in technology by recognizing that current viewing habits (for example, with the rise of on-demand streaming) has made all screens equal;
6. Screen production Entities: the FIWG has recommended that the “carve out” from the Employment Relations Act be further clarified to only apply to workers who are engaged by a company or person who is primarily engaged in screen productions or which primarily supplies services to another entity primarily involved in screen productions. The idea behind this recommendation is that a person who would normally be covered by the protections of the Employment Relations Act should not lose such protections because their employer decides to take up a contract supplying services to a screen production. For example, if a catering company enters into a contract to provide catering to a production, then a chef working at that catering company should not lose his rights under the Employment Relations Act;
7. Principles of engagement: perhaps the most ethical and, in my opinion, welcome change is the introduction of four core principles of engagement to apply to every screen industry contract as minimum terms that cannot be contracted out of. These are:
8. (a) Good faith: a general requirement of good faith. Basically, screen industry worker and engager must deal with each other honestly and fairly and should not do anything to mislead or deceive one another;
9. (b) Protection from harassment, bullying and discrimination: although protections against harassment, bullying, and discrimination already exist in all NZ contracts via the Human Rights Act 1993 and Health and Safety at Work Act 2015, the FIWG suggests they should be expressly incorporated in all screen production workers contracts;
10. (c) Fair and reasonable termination: the engager must act fairly and reasonably when terminating contracts. However, this principle will take into account screen industry norms such as early termination for cause and without cause; and
11. (d) Fair rate of pay: screen production workers must receive a fair rate of pay in relation to their skills and the scale of production.

The FIWG did not discuss how these broad and general principles will be implied into screen production workers contracts or how they should be enforced.

Most of the changes recommended by the FIWG are not dramatic diversions from current status quo, which is good because the attractiveness of NZ as a production destination is somewhat related to the certainty that overseas production companies have in our labour laws. In my view, the recommendations serve more as clarifications to the current law, recognizing that in order to thrive, the NZ Film Industry requires its own employment regime, flexibility and pragmatism while giving its workers basic minimum rights.

There are several further recommendations that relate to collective bargaining and disputes that we will cover in later articles.