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Key questions

By Steven | October 28, 2010

I’m no expert on employment law. I claim no insider knowledge on the Hobbit fiasco. But there are some obvious questions that I haven’t seen anyone in the media ask:

1. John Key says he’s going to pass law “clarifying” the difference between employees and contractors, at least in connection with the film industry. What exactly is it that needs clarifying? What is he going to clarify that wasn’t clarified by the Supreme Court in the 2005 Bryson case?

2. Doesn’t he actually mean “change” the law? If so, how? If not, why bother passing new law?

3. In fact, doesn’t he really mean: “make it harder for people on independent contracts to argue that they’re actually employees, even if they’re being treated as employees”? If so, what’s the justification for this?

4. In particular, since it seems that all the actors are happy being on independent contracts, and as far as I know none has ever challenged such a contract, or is likely to, then isn’t this change actually only going to affect the techies and the crew? In which case, is this about the threatened strike at all?

5. How is it going to be achieved? Will the government simply introduce a rule that if the parties describe their arrangement as a contract for services, that will be the end of the story? That is, the courts will not be able to look behind the contract to see if in practice it’s really an employment relationship, even if the studio exercises close control over the worker during an extended period of time, provides workplace and equipment, and integrates the worker into the fabric of the workplace? Or will the government instead be setting a higher threshold before independent contractors can show that they’re really employees? If that threshold is expressed in terms of a general test, or series of factors, how will this provide any greater “clarity” than we had before?

6. If it’s justified to change these rules for the film industry, why isn’t it justified to change them for everyone else? And if it’s not justified to change them for everyone else, why is it justified to change them for those in the film industry?

7. And why do this under urgency, in one day? Legislation can still be passed quickly without doing it this quickly. Isn’t there a danger that it will be rushed and botched? Isn’t it undemocratic to rush it through without at least allowing some degree of input from the public and interested parties through the Parliamentary process? Did Key promise Warners to pass it this way?

Topics: Media ethics | 5 Comments »

5 Responses to “Key questions”

  1. James W Says:
    October 28th, 2010 at 1:40 pm

    The media could ask those questions. Or it could just trawl Facebook fan pages and reckon the public endorse this deal to keep the Hobbit in NZ:

    http://www.nzherald.co.nz/entertainment/news/article.cfm?c_id=1501119&objectid=10683644

  2. Graeme Edgeler Says:
    October 28th, 2010 at 2:15 pm

    Vernon Small’s First Reading column in today’s DomPost addresses some of these

  3. Steven Says:
    October 28th, 2010 at 2:26 pm

    Here’s Vernon’s column. I’m not sure it gets far with many of the questions I raised.
    http://www.stuff.co.nz/dominion-post/news/politics/4281126/Its-not-all-the-film-unions-fault-but-they-picked-the-wrong-fight

  4. Graeme Edgeler Says:
    October 28th, 2010 at 6:25 pm

    I was thinking of these comments:

    Sure, the film’s makers would have been appalled by the possibility that stars such as Sir Ian McKellen could pull the plug. And can it be true that unionists arguing for a better deal pointed to the James Bryson case – in which the Supreme Court found someone called a contractor was really an employee – with a flippant but threatening “perhaps we are all employees then”? If they did, that would have been red rag to a raging bull.

    But even a cursory reading of that case would indicate the threat was hollow. The court ruled on the facts alone, and found model-maker Bryson’s case and contract were not typical of industry practice.
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    Nevertheless, the Government’s offer to clarify the law, and unions’ blanket assurance of a dispute-free journey for The Hobbit, ought to have been enough – were it not for Warner Bros’ warlike stance that it no longer puts much store by union promises.

    Of course, taken at face value, that should be the end of the road. Dead hobbit. There and back. So why did the studio continue to contemplate filming here? Oh, that’s right, because all its disquiet about union disruption could be forgotten if it could wring a few extra millions out of the taxpayer.

  5. The changes to employment law « The Standard Says:
    October 28th, 2010 at 8:51 pm

    […] it looks like Andrew Geddis and Steven Price are asking the same […]

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