Recommendations From the Film Industry Working Group - Collective Bargaining and Disputes
The Film Industry Working Group (“FIWG”) was established in early 2018 with the task of advising how to enable screen production workers to bargain collectively, while allowing them to continue working as independent contractors and without discouraging investment from overseas production companies.
Enable collective bargaining
FIWG has recommended that existing laws be amended to enable screen production workers to collectively bargain at the sub-industry level in order to negotiate prescribed collective contracts for each sub-group in the industry e.g. directors, writers, technicians, etc. As a bottom line, FIWG suggests that each collective contract for a sub-group should set out the following terms as minimums below which a screen production worker cannot be engaged:
- pay;
- breaks;
- public holidays;
- minimum and maximum hours of work;
- dispute resolution; and
- termination.
The overall purpose is that where a sub-industry collective contract is in place, individual contracts may not be on terms less favourable than those collectively agreed hence protecting screen production workers being contracted on terms below what is considered fair and normal. The agreed contracts would then be ratified, registered, and readily available for all screen production workers. It is important to note that workers will still be able to agree on terms above these floors. FIWG has also recommended that a production may in exceptional circumstances be exempted from using these collective contracts, giving “unusual locations” or “use of animals” as examples of when such an exemption may be appropriate.
No industrial action
What is unusual, and perhaps worthy of further discussion, is that the group has recommended that industrial action, including strikes, not be permitted “given the volatility and international mobility of the screen industry”. The fear is that the possibility of strike action may deter international productions from coming here. On the other hand, the ability to strike is sometimes the only tool available to a group of workers to exert leverage in a commercial negotiation. Under existing legislation, the ability to strike is limited in those industries that are considered “essential services” such as paramedics, but that does not apply to the screen industry. In my view, before rejecting such a fundamental right as the ability to strike, FIWG should carry out research in other jurisdictions that do have this right to determine what the real risks are to international productions coming to NZ.
Dispute resolution – establish a mandatory framework
As the majority of the screen production workers are contractors, they do not have access to New Zealand’s employment dispute resolution framework. To enable screen production workers to access something similar, FIWG has recommended the following three-tier process as a mandatory process for screen production workers resolving disputes arising from their contracts:
- Step 1 - mediation by trained, government-provided mediators (or private mediation at the parties' election);
- Step 2 - if mediation is unsuccessful, then an arbitration process is used; and
- Step 3 - if both mediation and arbitration are unsuccessful, then the parties can seek resolution in court i.e. litigation.
The intention is to give parties several opportunities to resolve disputes relating to contractual breaches in a conciliatory manner. The preferential order of the processes with litigation as the final option is reflective of the chilling effect that court action and any consequential media reporting tend to have on screen production.
Where to next? Creating an environment for the recommendations to flourish
In addition to the recommendations, FIWG believes there needs to be some fundamental changes to the industry before any of its recommendations can be implemented successfully. For example, the industry needs more financial resources to support the collective bargaining process and to educate screen production workers about how the process works. In addition, the FIWG acknowledges that any introduction of these recommendations will need to be done in a way that considers the perspective of overseas investors, so as not to discourage investment and to ensure certainty for projects that are already underway.
