The Importance of Fair Contracts

Concerning contracts

Kia ora all. And welcome to our new editor Graeme Tuckett.

Every issue I feel like I harp on about the same old thing: ‘contracts’. But contracts, their content, lack of content or the change of content are so often at the core of conflict between producers and technicians. Time and again crew members begin work under the good faith of a verbal agreement or email, and do not receive their written contracts which details the specifics conditions until after shooting has begun.

The Guild has noted in recent months, that additional to what the Guild can only describe as ‘unprofessional, late and untimely issuing of contracts,’ many of these contracts contain unacceptable clauses which are inequitable and stacked unfairly against crew. Unfortunately, if you sign it you are obliged to the conditions contained within it. So, technicians, please be wary!

To emphasise how disturbing this inequity can be the Guild has been dealing with a scenario wherein a technician was cold called by a production. As is required for most positions, several weeks prep was required.

In good faith the crew member entered into a verbal agreement with the production and went about securing and hiring equipment based on a 26-week shoot as agreed. To confirm the verbal agreement, the crew member created what is coined a ‘cocktail napkin’ contract which was signed by the production agreeing to the commitment of labour and equipment. As long as all the relevant details are contained within, a ‘cocktail napkin’ contract is a legally binding contract.

It is important to note that the crew member instigated and drew this agreement up to protect herself. It was not forthcoming from the production company.

By the time the production began shooting no official contract had been received. It was received several days into shooting. The production created a labour-only contract for the technician and the equipment hire company then supplied an equipment hire contract.

Three weeks into the shoot, the crew member and her assistant were called into the producers office and told that their contract would be terminated. A seven day clause was – as is in many film production labour contracts – in her contract. The reason for termination was that the production had found a cheaper supplier and quote. She was not given the opportunity to offer a competitive quote but was basically told ‘on your bike’. Remember that this technician was not the equipment supplier. So a cheaper supplier – considering labour and equipment were two separate contracts – should not have affected her or her assistant, whose rates were already in the lower scale for the department they were working in.

This crew member had turned down a significant amount of work to commit to the 26 weeks of shooting. The equipment hire company had a separate contract with the production. It appears at this stage that the production company is behaving as though the termination of her labour contract has discharged them from any responsibility to the contract with the equipment hire company. The equipment hire company has contacted the production on numerous occasions but has not had the courtesy of a call back.

This brings me to a second cautionary reminder: if you are sub-hiring equipment you need to ensure you are protected. The company you are hiring off may not be sympathetic to your plight if your contract is terminated.

The Guild is disturbed by this case and has assisted the crew member and equipment company with legal assistance. It is yet to be determined whether the ‘cocktail napkin’ contract did in fact have all the relevant information to protect her. The lawyer assisting has already worked on behalf of another crew member for the same production.

On reading the contract for such an extensive production the Guild and the lawyer both feel the contract falls well short of an acceptable and fair contract between the contractor and the production.

On closer reading it is was additionally noted that it contained reference to arbitration through what appears to be a non-existent organisation: “The New Zealand Production Commission”. Asking around the industry, the lawyer and a Google search has revealed no such organisation. This shows an incredible amount of unprofessionalism and, once again, should act as a caution and reminder to crew to read and be aware that some contracts fall far below acceptable standards.

This production is funded by public money, and as such there is an expectation not just from the funders but also the public that the recipients of public money conduct themselves honourably, with mana and a strong moral compass.

The Guild perceives that the scenario described is to the contrary, showing little respect for the human resources of the film industry and the honour of being granted public money.

Our concerns have led us to address the issue with SPADA, the Film Commission and NZ On Air. The Guild feels that there must be consistent monitored accountability of producers to adhere to the highest standards of professionalism. That proposal budgets are realistic, Blue Book guidelines (as per producers’ contracts from both NZ On Air and NZFC) are adhered to, contracts are fair, equitable and issued to crew in a timely manner to read, and without fear to discuss and adjust.

In conclusion: as self-employed contractors, be cautious. Read those contracts thoroughly and ensure your interests are protected!