CAROL BEAUMONT (Labour) Link to this
I intend to put a few facts into the mix today. We have just listened to the most ridiculous set of misleading half-truths, stereotypes, and absolutely ridiculous comments from the Minister for Economic Development. But before I do that I want to make a few points on my behalf and on behalf of my colleagues.
I reiterate the point made by the Hon Trevor Mallard that on this side of the House we value our creative industries. We take great pride in our creative industries. If we look at the track record of the previous Government, we can see absolute chapter and verse how we supported the creative industries in this country. So, first of all—fact—we support the creative industries. Just ask the people who work in those industries about the last Government’s support for their industries. Secondly, we want The Hobbit to be made in New Zealand and are glad that it is being made in this country. Like everybody else in Parliament, and like all of the people in New Zealand, we are proud of films like The Lord of the Rings films, and I am sure we will be proud of The Hobbit. I want that on the table as a matter of fact. That is what was driving some of the polls referred to earlier; all New Zealanders want to see this film made here.
But I want to dive beneath that, to look at some of the detail and try to get a few questions answered. We know that the creative industries provide jobs in this country. We know that economically they are very valuable in terms of the money spent in New Zealand. We also know their value for tourism. But we have to have some answers to our questions. This whole debacle has been a major embarrassment for our country. To watch Government members across the House acting in the way they have in relation to Warner Bros has been an absolute embarrassment for this country. What about the economic and political sovereignty of New Zealand? I intend to ask some questions on that. I intend to ask some questions on how members opposite handle disputes, because, honestly, it has been appalling. There is a labour dispute, and where is the Minister of Labour? Nowhere to be seen. Thirdly, I intend to look at the actual issues at stake in this dispute, and, fourthly, to look at the actual nature of the bill before the House. We will be debating the Employment Relations (Film Production Work) Amendment Bill over several hours. There are many questions to be answered, and I hope the media will start to dig beneath the headlines and ask some hard questions of the Government, because they need to be asked. Once the public starts to hear the answers to some of these questions I think we will see quite a different reaction from the one we see at the moment.
On the issue of economic and political sovereignty, I want to know whether this Government can confirm that labour laws should be changed in response to domestic concerns and issues. Maybe the Minister of Labour, if she is so inclined, could confirm to us whether that is the case—that labour laws are a domestic matter and should be changed in response to our own domestic concerns and issues. If not, on what basis should labour law changes be contemplated? That is my first question. My second question is whether the Minister is aware of other sovereign States that have changed labour laws in response to the demands of foreign corporates. Let me say that again: which States have changed labour laws in response to the demands of foreign corporates? I am aware that in South-east Asia there are quite a few examples of what are called export processing zones where exactly that has happened—where countries have changed labour laws to meet the needs of foreign corporates—but it is not something I have seen happen in this country.
I raise a point of order, Mr Speaker. I cannot hear Carol Beaumont because of the shouting. I think—
Hon Gerry Brownlee
The ASSISTANT SPEAKER (Hon Rick Barker) Link to this
Humour is appreciated but not on this particular occasion. The member makes a fair point; this is a chamber of free speech, and free speech means that people are free to speak and that members are able to listen to them.
Hon Tau HenareAs I was saying, it is very important to consider why sovereign nations would change their labour laws in response to the demands of foreign corporates. The only examples I can come up with involve export processing zones in South-east Asian countries. Perhaps the Minister of Labour, if she can be bothered, might answer those questions. The other thing I would like to know is whether we can get some confirmation that there are elements of our labour laws that will not be changed in response to demands by foreign corporates. Are we going to say that any item in our law is open to change if foreign corporates demand it? Perhaps we would reduce the minimum wage if a foreign corporate wants to come here but thinks it is too expensive to employ New Zealand workers. Should we change the minimum wage and say that it can be less for employees of a foreign corporate? This is about a Government that seems willing to make changes to important domestic matters at the behest of foreign corporates. That is my first lot of questions. I hope the Minister will take the time to reassure us on those matters.
In looking at the Government’s handling of this dispute, I point out that the Hon Trevor Mallard has talked about the issues related to the incentives for film companies operating in New Zealand and has asked some questions about them. I note that Sir Peter Jackson raised questions in July of this year about the level of incentive. I have no idea why it was not dealt with by the Government separately from this dispute, but somehow it has now become an outcome of this dispute.
I want to talk more about the issue of the so-called lack of clarity over the legal status of people working in the creative industries. I am sure that my colleague Charles Chauvel will deal with it in a lot more detail, but I can say that there is no uncertainty. As others have said, including members across the House, a lot of the people in the film industry operate now as independent contractors. That is not in question and nobody is disputing that. The Bryson case that has been referred to has not led to the status of a whole lot of people suddenly being changed. This is all a red herring. That 2005 Supreme Court decision has not led to widespread change in the industry. I do not know what the matter is that requires clarification by the bill. We have been told it is about clarifying the status of people in the industry, but their status is quite clear, and the decision of the Supreme Court was quite clear, so it is not about that.
This bill provides a default provision. As I read the bill in the short time I have had it, the default position is that people will be independent contractors. It goes on to say who those people are. It talks about “actor, voice-over actor, stand-in, body double,” etc., but also goes on to talk about any person engaged in film production work in any other capacity. That could be the person who answers the phone. I am not sure that such people really require clarification of their status as independent contractors. I am sure that that will come up further on in this debate, but I want to keep going with the questions I want to ask.
I am concerned that this bill will be used to undermine wages and conditions, and I want to know that that is not the intention. Independent contractors, when they are famous actors and so on, are clearly well-paid people and clearly choose that status, but it seems to me that no other person in the film production industry benefits from having the status of independent contractor. In fact, they would lose a lot of protections that exist under employment law, and they would be required to do a number of things, like pay their own tax, accident compensation levies, and so on. There is a risk factor if this status is intended to be extended to cover people other than the people being talked about—the actors, the technicians, and so on. The Government might wish to keep talking about high-paid actors, but many in this industry are not well paid, and I am sure that other members will talk about that. But what we know is that this Government puts in place shonky arrangements then extends them elsewhere. We need only look at the 90-day bill, which introduced 90 days’ employment with no rights, to see precisely that situation occurring.
The real issue—and I will come back to this point in a later speech—is collectively negotiating terms and conditions, and this bill does not deal with that issue, at all.
KEITH LOCKE (Green) Link to this
The Green Party is strongly opposed to the Employment Relations (Film Production Work) Amendment Bill. This is a very sad day for New Zealand, because not only is the Government moving legislation through this Parliament at the behest of a foreign multinational, Warner Bros, which is an affront to our sovereignty, but also it is completely abusing the parliamentary process. It is rushing important industrial legislation through Parliament, through all stages, in a few hours, under urgency and is denying all chance for the legal profession, employers, union leaders, and members of the community to make submissions on it. In fact, members of Parliament have had only a couple of hours in which to look at the bill and prepare their contributions.
Any other bill sits on the Table for 3 days, which means that members of the public, including those following this debate, have the chance to figure out what the bill is before we discuss it in the House. There will be a lot of confusion out there among the people listening to this debate on the radio or watching it on TV. MPs are not being given a proper chance to scrutinise this legislation.
Industrial legislation is very tricky and complicated legislation. In the Transport and Industrial Relations Committee this morning we finalised a couple of bills: the Holidays Amendment Bill and the Employment Relations Amendment Bill (No 2). Those bills have been around for months. We received many submissions on them, we had many debates on them, including debates on interpretation, and they were quite divisive in many respects. That shows the complexity of industrial law, and it is quite wrong to rush such law through Parliament. That is particularly so given that Gerry Brownlee said, when I questioned him earlier today, that Warner Bros has not said that this bill needs to go through this week. Well, why are we pushing it through this week? Either there is some misinformation there or we could have a proper select committee process on this bill.
What is the problem with having a proper select committee process? The Minister of Labour said that the bill does not really change anything and that we are just creating some certainty. I think Gerry Brownlee had a slightly different interpretation. This bill produces more uncertainty in our industrial relations law because the concept behind this bill is quite different from the concept behind the rest of the Employment Relations Act. That concept was clarified in the 2005 Supreme Court decision of Bryson v Three Foot Six, which defined what an employee is. That decision was codified and explained by the screen producers organisation, the Screen Production and Development Association of New Zealand, or SPADA, which produced a little document on what it would mean.
Essentially, the Screen Production and Development Association explained what we would call the duck test—that is, if something walks like a duck, swims like a duck, and quacks like a duck, then it is a duck. In this case, the association laid out things such as the control that actors have over their work situation, where it happens, what is done, and the timing of it, etc. In reality, a lot of those things are under the control of the director, so in that sense, independent contractors are similar to employees. Another test the association outlines is the extent to which workers, when going into this job, provide their own equipment, take financial risks related to the production, and so on, and generally actors do not do that. So there are a lot of parallels with the work that actors actually do in being employees.
This bill goes completely in the opposite direction from the duck test. It says that when the employer, or the film producers, and the actors or people in the film industry in general sign a contract, what they say in that contract—whether the actor is an independent contractor or an employee—is what determines rights from there on. That is quite contrary to the general theme of the Employment Relations Act. Where that puts actors at a disadvantage is that now employers know that under this arrangement they do not need to give actors the right to collective bargaining. They will say that if actors want to be in their movie, they will give them a contract that says they are independent contractors and not employees, and that they can take it or leave it. If they do not take it, they do not get the job on the film.
That will mean that these people then lose all rights to collective bargaining in relation to their employer—the film company—and that, of course, is a big problem. It will provide a feast of work for lawyers and judges in the future, who will bring back that Supreme Court decision and look at it as it applies to the Employment Relations Act as a whole. They will say that this amendment is in conflict with that Act, and they will ask whether such a person is an independent contractor or an employee, and they will ask what that person’s rights are. It will be a legal feast. That is why we need to take submissions on this bill, rather than just rushing it through.
There is a whole history of people like actors bringing their skills and labour to a short-term work situation or a fixed contract. For example, many people in the construction industry get a job on a building for a fixed period of time. They are paid certain amounts, and even though they are contractors contracting for that work they retain rights similar to the rights of employees under the Employment Relations Act. It is also good for the film industry to give film workers and actors more rights. In my experience, the more rights that people have, the more confident they feel, and I think confidence is a big thing in the acting profession. If actors are kicked around and denied their rights, then their work will suffer and the film will suffer.
All of us here—every New Zealander, I think—wants The Hobbit to be a success. This debate has never been about whether The Hobbit should be produced here. Everyone wanted it to be produced, directed, and made in New Zealand. We in the Green Party are saying that it would be a more successful film if the rights of actors and film workers in general were respected and not undermined in this way. I agree with previous speakers. Sometimes over the years we have talked about banana republics and Governments that have been—
Hon Ruth DysonI agree with the interjection. We are not even a banana republic; we are a banana constitutional monarchy. So we have a couple of things on our hands here.
The term “banana republic” was originally used as a reference to countries, in Central America in particular, whose dominant industry was bananas. The big banana companies, like United Fruit in earlier times, or Del Monte, would essentially run the State, because they had such a big weight in the economy. Now we see that New Zealand, a developed and multifaceted economy, is acting in the way of the banana republics.
Warner Bros comes along and says: “We’re not going to make this film here unless you give us more money and change your industrial laws to suit us, and bow and scrape.” So we forget about our sovereignty and forget about our honour. Do we not have honour as a people? We can just say: “Yes sir, no sir.”, and then pretend it is all for the good of the workers concerned. In fact, if we study the Employment Relations Act, we see that it does not have any good spin-offs for this bill. This bill is in contradiction to the Employment Relations Act, and the Green Party is very opposed to it. Thank you.
Hon TREVOR MALLARD (Labour—Hutt South) Link to this
I raise a point of order, Mr Speaker. I am not sure whether it is your responsibility or the responsibility of the Government, but I have been informed that this legislation, the Employment Relations (Film Production Work) Amendment Bill, has not yet appeared online on the New Zealand Legislation website. People are now ringing to ask why the normal practice of—
Hon TREVOR MALLARD Link to this
I am informed that it is the Attorney-General’s responsibility. But through you I ask the Leader of the House to ask the Attorney-General to ensure that New Zealand Legislation is updated so that people who are looking for this legislation can get it.
The ASSISTANT SPEAKER (Hon Rick Barker) Link to this
The member has made his point. It is not a point of order of the House; a point of order of the House is about the order of the House. The Government’s requirement here is to have a bill on the Table. Of course it would be in the public’s interest to have the bill available online, and I am sure the Attorney-General will send a message to make sure that that happens in due course.
Hon RODNEY HIDE (Leader—ACT) Link to this
I rise joyously to support the Employment Relations (Film Production Work) Amendment Bill. We have heard from all the political parties present today that they want the Hobbit movies to be a great success. Every political party also says they want the Hobbit movies to be made in New Zealand. I can assure this House that there is only one reason why these movies are to be made in New Zealand, and it comes down to one man, our Prime Minister, John Key. It is impossible to imagine that Helen Clark would have had the ability to sit down with Warner Bros, negotiate this deal, and give Warner Bros confidence. As for Phil Goff, he has been deafening in his silence, while New Zealand has—
Paul QuinnQuite. I will not refer to Phil Goff again. Trevor Mallard would not have been able to sit down with Warner Bros and negotiate a deal. I do not think Russel Norman would have been able to sit down and negotiate a deal with Warner Bros. We are very fortunate. One thing we know about our Prime Minister is that he can cut a deal. He can look Warner Bros in the eye, as the Prime Minister of New Zealand, give it the assurance it needs, and protect New Zealand’s interests.
Let us be absolutely clear about the sequence of events. The Hobbit movies were to be made in New Zealand—and it is all very well for Labour Party members to talk about foreign interests—until a foreign union turned up in New Zealand. On 17 August Mr Simon Whipp of the international actors union from Australia—he is not even a Kiwi—threatened a global boycott of the Hobbit movies and turned it—
I know Labour members hate hearing this, but it is the truth. Simon Whipp turned up here and threatened a global boycott of the movies, and it turned pear-shaped. By the way, I waited to hear the Labour Party’s condemnation of that attack. I waited to hear the Labour Party’s condemnation of this overseas union. What did we hear? Nothing. There was deafening silence.
So outrageous was this union’s behaviour that we had the remarkable experience of New Zealanders spontaneously organising themselves to protest, on Labour Day, against the union movement and its attack on New Zealand and on the fundamental interests of workers in this country. Where was Phil Goff? We did not hear a thing. Where was Trevor Mallard? We did not hear a thing. Where was Parekura Horomia? Actually, I think I know where he was, but I am not allowed to say. There was nothing from the Labour Party and nothing from the Green Party, yet they come to the House and say they would like the Hobbit movies to be made in New Zealand and to be a success. Those movies were going to go down the gurgler.
The National Government approached the ACT Party and asked whether we would support legislative change. We asked what it would do. It said it would clarify that if a worker signs up as an individual contractor, that is what that worker will be. That is not bad, is it? If a worker signs a contract to be an individual contractor, that is what that worker will be. We said that of course we would support it, because we think that English words should mean what they say. If those words specify an individual contractor, it is not an employment contract. What could be easier to understand than that? I can understand Warner Bros scratching its head, thinking about our Supreme Court and the way it interprets simple contracts, and saying: “Wow! You sign up an individual as a contractor, and it might turn out they were an employee.” That is a big risk, and of course the ACT Party was happy to support that change.
I heard Trevor Mallard ask who wins and who loses. I think it was a genuine question from Mr Mallard, so here is the answer. New Zealand is the big winner. It is a huge winner because these movies are to be made in New Zealand, and they were not to be made in New Zealand. The film industry in New Zealand is clearly a big winner. It is also very, very clear that tourism is a big winner, particularly with the documentaries that go on the DVDs, which will be huge for New Zealand. It is also very clear that the workers in New Zealand are big winners, not just in the film industry but right through New Zealand. The confidence that this will put into the market place and into the economy, and the tourism it will generate, will mean they are the big winners. Undoubtedly the Prime Minister of New Zealand is a big winner, because he single-handedly pulled it off. Where was Phil Goff? Where was the Labour Party? Where was the Green Party?
They were nowhere. The Prime Minister went out and did it. I would like to think that some of that glory will reflect on the ACT Party and, indeed, on the Māori Party and United Future, and the good people of Epsom will think it was not too bad. We got The Hobbit because we have a good Government, not that ragtag bunch over there who would have destroyed New Zealand’s opportunities.
Trevor Mallard asks who the losers are. Let me think. I do not think it went very well for Mr Simon Whipp. I do not think it went very well for the international actors union. I do not think they are the winners; I think they look like losers. I do not think that it went very well for Helen Kelly. I do not think the Council of Trade Unions came out of this smelling of roses. I do not think the Council of Trade Unions came out of this too good. I do not think it looked very good for the New Zealand union movement. But the big loser has to be the Labour Party. The big loser has to be Phil Goff. He thought that Labour members would come to this House and oppose this bill. Is that possible?
Hon Darren HughesPoor Mr Darren Hughes! Mr Darren Hughes says: “Poor Rodney!”. I did not lose my seat at the last election; that member did. I actually kept my seat and increased my majority. I did not know this, but it turns out that that member was a Minister, and now he is sitting on the Opposition backbenches, and he says: “Poor Rodney!”. I say: “Poor Darren Hughes!” because the Labour Party is tied to the union movement. The fact that the Labour Party president is the leader of the New Zealand Amalgamated Engineering, Printing and Manufacturing Union, and the fact that all of Labour’s funding comes from the union movement, means that Labour is boxed in on the wrong side of this argument. They are against the interests of the people of New Zealand. The Labour Party members are the losers in this. I tell Darren Hughes to be happy over there. Because of his party’s decision on this day, he is going to be a long time in Opposition. I have not even got on to the Greens yet.
TE URUROA FLAVELL (Māori Party—Waiariki) Link to this
Tēnā koe, Mr Deputy Speaker. Kia ora tātou katoa, e hoa mā, i roto i te Whare I tēnei ahiahi. Clearly, the issue at hand has fascinated everybody outside the House before today, and today. The debate captures our imagination and fascination. Putting aside the celebrity aspects associated with the profile of actors and film makers in the public psyche, it has had the ability to touch on a huge range of issues of high importance to our national reputation. The issue that has resulted in the Employment Relations (Film Production Work) Amendment Bill, a tiny 3-page bill, has the potential to have massive impacts upon the tourism industry, film production, the entertainment sector, industrial relations, our international status, foreign investment, workers’ rights, and the fate of our own domestic economy. That has been the general tenor of the discussion up until this point in time. It is also an issue that has compelled New Zealanders to take action: to take to the streets, for goodness’ sake; to flood email addresses with a heap of traffic; and to lobby the Government to listen to them.
Māori, like other people, are represented at every level of the film production industry. An increasing number of Māori are working in the film production industry, especially as actors and stunt crew. This bill specifies the range of occupations that it encompasses. To cut to the chase, what is the bill all about? Some members have alluded to this, but I remind those who are listening to this debate that the bill amends section 6 of the Employment Relations Act 2000, which relates to the meaning of the word “employee”. As a result of this legislation, the meaning of “employee” will now specifically exclude “a person engaged in film production work as an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer”, and also will exclude “a person engaged in film production work or in any other capacity.”
As an indication of just how widespread the impacts of this legislation will be, I say that even within our own very small team here in Parliament we have amongst our numbers people who have worked in the film industry. I will leave it up to members’ imaginations as to whether that was in performing stunts or in the art of acting. Be that as it may, some might say that amongst the current cast of MPs we also have those who have had their fair share of time in front of the camera. Some have been elevated to a national audience by University Challenge, and others have been in Dancing with the Stars or have hosted Asia Downunder,to name a few programmes. So the experience of being in front of a camera is not new, both within the realms of the House right now and within the parliamentary complex.
The bill provides incentives for film production to be carried out in New Zealand, not only by foreign production companies but by local production companies as well. From our perspective that is great news for Māori film makers, and it is great news for the broader workforce engaged in film production. In saying that, we acknowledge that all of the people who are pursuing careers in the film industry must be made aware of the importance of securing satisfactory employment agreements with the production companies that they may work for, as the Employment Relations Act will no longer cover them.
I will also touch on some of our concerns that have emerged about workers’ rights under this bill. For those who have worked in the film industry, it would seem that the procedures in place provide for a certain degree of rangatiratanga on the part of the individual when engaging in film work. I use the word “rangatiratanga” deliberately, because I think that one of the opportunities that can arise in situations like this is that it places incentives on the need to encourage whānau to be pretty much self-reliant and to show their economic leadership. According to those in the know, contracts are negotiated between cast and crew members and production companies. The nature of the contract is wholly dependent on the diligence of the individual or group that negotiates it. This is not so much a case of survival of the fittest as one that points to the significance of the collective will in negotiations. It is also evident in the recent comments from New Zealand Actors Equity that it will take steps to ensure that its members sign appropriate employment agreements with film production companies.
As we have watched this issue unfold it has been obvious that the film production family in New Zealand is a very tight-knit community, albeit very small. Those involved in the industry have told us that major issues that arise on sets tend to spread throughout the entire industry grapevine. Perhaps that is why this issue has generated such intense interest, because future career prospects and economic opportunities have seemed to be very vulnerable to the personalities and politics involved. But we cannot get away from the fact that an amazing opportunity for film making is now right on our doorstep, which, as others have said, 24 hours ago did not look in any way, shape, or form to be likely.
I will share a comment from my colleague Mr Hone Harawira about the enthusiasm that he has gained from talking to people like Lawrence Makoare and others in the film industry—Māori, that is—about the amount of work that they got throughout the making of the Lord of the Rings trilogy, and about how just being part of that project changed their lives. According to Hone, it gave them a vision of what else they could be, and it provided them with a place in history. One just cannot beat that kind of experience and that kind of exposure to things that those people might otherwise never have got involved with, had those films not been made in Aotearoa over the last few years.
On that note, I will share another breaking-news moment in the history of Parliament. It is from an email we received earlier today from Hone, which I will read for the record. It states: “Congratulations to John Key for pulling off this deal.”
But, of course, it is just not a matter of breaking news, box-office sales, or multimillion-dollar investments that we are talking about in this bill. We have some concerns about the vexed issues of precedent, or of anomalies that have not been worked through. As a case in point, I wonder whether the Government would jump as rapidly through hoops to bring in pay parity for employees of Māori and iwi health providers. That is an ongoing policy concern that is almost certainly in the national interest to resolve. We have Māori nurses and health workers in the non-governmental organisation sector who are being paid 25 percent less than those who work in the public sector. They do not go on strike, because of their total commitment to the people whom they serve.
In October 2004, 20,000 New Zealand Nurses Organisation members in the district health boards won a benchmark fair pay settlement, which closed the pay gap between nurses, midwives, and health care assistants employed by district health board, and professionals who work in other roles requiring similar skills, experience, and qualifications, such as teachers and the police. That was good news for those who work for district health boards. However, the settlement left New Zealand Nurses Organisation members in the primary health sector significantly lagging behind. Although the pay gap has now almost closed for most of the primary health workforce, the pay parity gap for Māori and iwi primary health providers—at least in the workforce—is now about 25 percent. It is not as though the solution to that issue would take a task force or an urgent ministerial inquiry to resolve; it is pretty straightforward. Pay parity would mean better health and well-being for our communities and for all New Zealanders. The policy problem is that those of our people who work for Māori and iwi health providers have the skills, qualifications, and experience that are essential to improve health outcomes for Māori, yet they receive far lower salaries than their equivalents who work for district health boards.
It will be a great day when the health and well-being of Māori are accorded urgency, and the needs of Māori health workers are elevated to the level of being a national priority. That this issue has—
Mr DEPUTY SPEAKER Link to this
I have indicated to the member twice that his comments should be relevant to the bill. This is not a bill about health issues; it is about employment.
TE URUROA FLAVELL Link to this
I am closing anyway, but I was making the point that issues around pay are relevant to issues of employment. So I say that—
TE URUROA FLAVELL Link to this
Thank you very much, Mr Hughes. I was making the point that it would be great if the needs of health workers were elevated to the same level of national priority as the interests of those working on the two movies related to The Hobbit.
Nevertheless, we do not want to close off the opportunities for New Zealand to benefit from the immediate opportunities in the film production industry, and to that end the Māori Party will support this bill.
Hon CHRISTOPHER FINLAYSON (Minister for Arts, Culture and Heritage) Link to this
The Employment Relations (Film Production Work) Amendment Bill is a very simple bill. It clarifies existing film industry practice and provides greater certainty for producers, investors, and workers, and I am very pleased to support it.
I was rather disappointed in the contribution from Mr Locke, a fair-minded chap who tries to look at both sides of the issues. I was not at all surprised by the response of the Labour Party, but Mr Locke, at least, tries to look at both sides of the issues. He raised a couple of points about the interference of foreigners in New Zealand. I had hoped that he would at least try to be consistent in his outrage about all forms of foreign interference in our film industry, and I will read into the record just a couple of comments that I think need to be read in as part of the permanent record of this House. On Monday, 11 October Helen Kelly of the Council of Trade Unions attended a meeting of actors in Wellington, representing the position of Actors Equity, a body that says it is independent of Australian unions. It is worth quoting from an article on Screen Hub, written by someone attending that meeting. Asked at the meeting why New Zealand Actors Equity had not taken a full board vote before inviting international guilds and unions to bring pressure to bear on the production, Ms Kelly reportedly told the meeting: “Your Australian leaders have been acting in your best interests.” Asked why local actors were not being afforded the chance to sort out any dissatisfaction about terms and conditions via their local representatives, Ms Kelly responded that international unions have more muscle.
Today some people are claiming that the unions have said that there would not be any industrial action on The Hobbit so all this is unnecessary, and that they simply could not understand why a studio that is investing many hundreds of millions of dollars in New Zealand—in New Zealand jobs, in New Zealand’s future, and in our film industry—may have some reticence about taking the unions at their word. One needs look no further than the statement from Actors Equity on Radio New Zealand just last Friday: “We’ve been trying this with local productions for a couple of years. The difference with The Hobbit was that we did have some support from outside unions. We didn’t encourage them to bully Peter Jackson. They came on board and supported us of their own accord.”
Another myth perpetrated by the unions is that the industrial relations dispute had nothing to do with money, but was about terms and conditions of employment. On 27 September the Australian unionist Simon Whipp told the Otago Daily Times that the issue was all about the payment of fees. Last Friday Robyn Malcolm was quoted in the Dominion Post as talking about securing financial benefits for those involved in the production. Is it any wonder that investors are reluctant to take the word of the unions in this matter, and have sought that the matter be clarified?
When Simon Whipp told The Hollywood Reporter that union success with The Hobbit would pave the way for unionising other productions in New Zealand, and Helen Kelly told Newstalk ZB that her primary focus was to “unionise the film industry, what was the problem with that, and that Peter Jackson was a spoilt brat”, is it any wonder investors get nervous about the unions’ true intentions?
What is most revealing is the point made by Mr Hide and Mr Brownlee: “What do the workers think about all of this?”. One need look no further than Labour Day, which is the day set aside for workers, when thousands of people marched up and down this country against the unions—on Labour Day, of all days.
Hon CHRISTOPHER FINLAYSON Link to this
They marched in their thousands, as Mr Henare said. Thousands of people cheered that great New Zealander Sir Richard Taylor, in Civic Square.
Earlier today a true worker in the film industry, Mark Harrison, stated he did not have any concerns about the proposed legislation. He said this is an area that has needed clarification, ever since the Bryson case. It should have been changed by the Labour Government. But was there any chance of that, given that Mr Chauvel, who is a member of the Labour Party, acted for the Council of Trade Unions as an intervener in the Supreme Court?
I think it is pretty clear that the Labour Party, once again, is shown to be more concerned about the unions than the economy. That has always been the case, whether it was the Waterside Workers Union in 1951, the Seamen’s Union in 1970—
Hon CHRISTOPHER FINLAYSON Link to this
—the Boilermakers Union over the BNZ building, or Actors Equity in 2010. The unions come first; the economy comes second. All I want to say is that I very much look forward to next year’s election, in the marginal seat of Rongotai, when Annette King—the self-proclaimed “MP for Weta”—and I can discuss some of these issues.
CHARLES CHAUVEL (Labour) Link to this
The first thing I want to say in this debate is that as a proud Wellington MP I am glad that it seems the Hobbit movies will now be made in this city. I was glad that the Lord of the Rings movies were made here. The investment in the city of money, energy, and the local talent that our local film industry was able to showcase made me really proud. The New Zealand landscapes displayed internationally through those movies married really well with the “100% Pure New Zealand” campaign that was run so effectively by Tourism New Zealand at the time. It is also great that a whole range of local businesses did well out of the films being made here. My own former law firm acted for one of the financiers of the films. I think it is useful to reflect on the fact that all of that happened under a Labour Government. I hope we will see similar benefits from the Hobbit movies that we saw from the Lord of the Rings movies, including a boost to our local film-making industry.
But there is a big difference. The Hobbit movies, thanks to the mismanagement that we have seen from the Government, come at a great cost to this country, one that New Zealand did not have to pay to have the Lord of the Rings movies made here. The Government proposes to rush through under urgency in the House today and tomorrow all the stages of a completely unnecessary law change. There will be no select committee scrutiny of the legislation. There will be no public or expert submissions heard on it. There will be no advice from officials to members on the amendment. I want to explain to the House—to “read into the record”, to quote the words used by the previous speaker, the Attorney-General—why this amendment is unnecessary and undesirable. I hope Mr Flavell listens, because I think his speech was an extraordinary example of how one can, in advocating for something, use reasons that undermine one’s advocacy for the position that one is taking.
As Christopher Finlayson told the House, I was a member of the legal team that acted for the Council of Trade Unions in the Supreme Court on the Bryson v Three Foot Six litigation. I was really proud to accept the union’s instruction. The Minister seems to think that is not a matter of pride—to be available to one’s clients, to take their brief. He should know, as the leader of the legal profession, that there is no more sacred duty on a lawyer than to do that, when approached. I was glad to argue the case. There was fantastic argument in the Supreme Court, and the Supreme Court listened carefully to the issues that were presented to it and dealt with the matter very carefully.
Because we heard a complete mishmash of a summary from Gerry Brownlee as to what actually happened in the Bryson case, it is useful to give the facts. In that case, a model maker had worked variously for Weta Workshop and Three Foot Six Ltd. Three Foot Six was a company specifically established to administer the production of the Lord of the Rings movies. During the production of the movies Mr Bryson worked fixed hours: 7.30 or 8 a.m. to 6 or 6.30 p.m., with 45 minutes for a lunch break, every day. He was part of a crew of 42 working similar fixed hours. He worked only for Weta Workship and for Three Foot Six. In his first few weeks he received on-the-job training in what he was supposed to do for Weta Workshop, and he got an individual initial pay rate of $18 an hour. These are the classic indications in our law of the existence of an employment relationship. But 6 months into that relationship Mr Bryson, in common with the rest of his crew, was given a document by Three Foot Six referring to “contractor” and “independent contractor”.
Those are the facts of that litigation. The long and the short of what the courts decided to do—[Interruption] That is right, 6 months into the relationship Three Foot Six proffered a document mis-describing the relationship as one of an independent nature rather than one of employment, which it clearly was. And that was what the Supreme Court confirmed in the litigation. Despite Weta Workshop handing Mr Bryson a document describing him as a contractor, he was clearly an employee by every test known to the common law and applied in this and every other common law country for over 100 years. The Supreme Court also confirmed that if the parties had bothered to clearly and correctly label their relationship from the outset, New Zealand law would have provided the flexibility for them to choose whether to be in an employment or a contracting relationship.
This bill will not actually fix anything. There has not been a flood of litigation since the Bryson case; in fact, that case, which is 5 years old, is the last leading case on the question of how one determines in this country whether a person is an employee or a contractor. So much for the great doubt that is said to exist in our law on this point, and that is said to be some sort of block on incoming foreign investment that we need so badly in this case that we will do anything, including subvert the processes of this House, to change the law in order to accommodate a foreign investor.
But the problem with this legislation, with the amendment proposed by the Minister of Labour, will be apparent to any employment lawyer looking at its provisions. In any case where anyone asserts that they are in an employment relationship, under the proviso in clause 4(2) the court will still have to undertake the very exercise that it undertook in the Bryson litigation. What the proviso says is that if there is an employment relationship or if the person complaining is a party to an employment relationship, then they are not subject to the exclusion in the amendment; they will be subject to employment law. Well, how does anybody determine whether a person is subject to an employment relationship? They go through the tests that the court had to go through in the Bryson case to determine whether an employment relationship exists. That is the recipe for litigation that the Minister is creating in this rushed and botched legislation. Far from creating some sort of certainty that is said to be sought here, we are participating in the creation of massive uncertainty by unleashing on the courts and on the parties to litigation in these sorts of disputes the very sort of inquiry that the Minister thinks she will extinguish. As I say, the courts will have to go through the mixed inquiry of fact and law to determine whether, in any case, an employment relationship exists. An employment contract does not have to be in writing, as the Bryson case made very clear. The courts will have to go through the tests, look at the reality of the relationship, and determine whether, in any case before them, there is in fact such an employment relationship.
So after this legislation has been rushed through the House, every time there is a dispute in the film industry, what will happen? A person will say “I am an employee. I am subject to an employment contract.” They will do that because it is cheaper to take a personal grievance than it is to take a commercial dispute through the ordinary courts. Then the courts or the employment relations authority will have to do exactly what they did in the Bryson case. This Minister, through her inexperience, her lack of knowledge of employment law, and her failure to seek the most basic advice and follow the most basic process—
She and the members opposite think it is funny, but they are about to put employers in this country through a major new series of employment litigation, which has not been seen in this area for 5 years, and which they will be responsible for resurrecting. We are tying ourselves up in knots, we have sacrificed our sovereignty, and we have thrown out due process, all for an amendment that simply will not do what the Minister thinks it will.
Hon Dr JONATHAN COLEMAN (Minister of Immigration) Link to this
Talk about being able to get on the wrong side of an argument. The diatribe we have just heard from Charles Chauvel sums up where Labour is going wrong. With his legal background, he has gone into the very depths of the detail of his legalistic arguments, and he is completely out of touch with the majority of New Zealanders. He says that this bill will not fix anything, but I can tell members exactly what it has fixed. It means that a production worth $670 million to the New Zealand economy is now going to be made here in New Zealand. Apart from Labour and Green members, there is unanimous support out there in New Zealand for what happened yesterday. John Key has literally saved the day, and this legislation is saving this massive, important project for New Zealand.
Hon Dr JONATHAN COLEMAN Link to this
Carol Beaumont is showing why the people of Maungakiekie will never vote her in, because, quite frankly, she is completely out of touch with reality on this issue. Charles Chauvel said that this legislation was unnecessary. Well, it was absolutely necessary if we were to keep this project in New Zealand.
Labour members’ response to this issue shows us how tied up they really are with the union movement and the New Zealand Council of Trade Unions, because that is where their funding will come from at the next election. There is no question about it. So when members of the New Zealand Council of Trade Unions were out there making complete fools of themselves over this issue, Labour members had no option but to back them. It was indicative. It must have been the first Labour Day when we actually had anti-Labour marches. The coalition of Labour and the unions has been quite amazing; they have been able to direct public opinion with incredible force directly against them. If those members over there were in charge, they would have been quite happy to see the Hobbit project go offshore. For the cost of $33 million, we will get a $670 million boost to the New Zealand economy.
Labour used to fancy itself as the party of the arts, and the party of the film industry; that has been totally blown away. That member, Carol Beaumont, is so out of touch. If she thinks that her party now has any credibility with the film industry, she is out to lunch. Darren Hughes is not saying much, because he knows that his party is on the wrong side of this argument.
I want to talk about the fantastic work that the Prime Minister did yesterday saving this project for New Zealand. Those members—there are about 40 of them—are the only people in New Zealand who feel that what happened yesterday was the wrong move for New Zealand. It was fantastic for the country, and it was fantastic for the tourism industry. One in 10 visitors to New Zealand comes to New Zealand because they have seen The Lord of the Rings. It is amazing but it is true.
I ask whether members know about the publicity that money just cannot buy that this project will bring to this country. We cannot quantify the positive benefits; they will be massive. I must say that John Key really did a great thing for New Zealand yesterday in getting Sir Peter Jackson and Warner Bros to actively market New Zealand in every DVD sold of the Hobbit movies.
So there we have it. The Employment Relations (Film Production Work) Amendment Bill is important legislation. It specifically clarifies the employment situation for people working in the film production industry. It gives them a choice: they can decide at the outset whether they want to be contractors or employees. This legislation makes it clear. It is absolutely clear that in order for Warner Bros to make this movie in New Zealand, the legal situation had to be clarified.
Quite frankly, beforehand, there was a lot of uncertainty. The public needs to remember that before the unions got involved, with the backing of Labour, The Hobbit was being made in New Zealand. It was only once the unions, the Media, Entertainment and Arts Alliance, and all the rest jumped in that the project was thrown into major jeopardy. It became a fifty-fifty prospect at best. It took the Prime Minister, specifically, to come in with his skills and his powers of negotiation to save this project for New Zealand. He deserves full credit for what has gone on. It is a great thing that this production will be coming here. Certainly, anyone with any sense will be commending this bill to the House.
Hon DAVID PARKER (Labour) Link to this
I have no doubt that Sir Peter Jackson wanted The Hobbit made in New Zealand, just as I have no doubt that the film workers wanted The Hobbit made in New Zealand; that the New Zealand unions wanted The Hobbit made in New Zealand; that National wanted The Hobbit made in New Zealand; that the Labour Party wanted The Hobbit made in New Zealand; that the Greens, ACT, and the Māori Party all wanted this movie made in New Zealand; and even that Warner Bros wanted this movie made in New Zealand. Why did all of those people want that movie made in New Zealand? It is not because the National Government or John Key walk on water, but because we have a highly skilled film industry that will make a good movie at a good price.
What has gone on here is a game of brinkmanship—brinkmanship by all parties. Some of that brinkmanship ended earlier than other brinkmanship. The brinkmanship by the union movement—and there was brinkmanship by the union movement—was pulled out some time ago. Indeed, we have the email on file from Warner Bros acknowledging that the union dispute was over. The union dispute was over by 18 October—
—American time. The brinkmanship in respect of Warner Bros was matched by brinkmanship on National’s side. I am not necessarily criticising it for all of that brinkmanship. The Minister of Finance said that we would not spend any more money and we would not change the laws. The Minister for Economic Development said we would not spend more money. We would not expect them to go into a negotiation saying that there was lots more money, but it was brinkmanship. The brinkmanship went a bit far, and National got a fright because it thought Warner Bros was going to pull the pin, that that side of the negotiation would pull the pin and go somewhere else like Ireland. So National got worried, and it thought about who it could blame.
The brinkmanship was going poorly, so what did National do? It said that it was all the fault of the Labour Party and the unions. The Labour Party and the unions have been the whipping boy for National because the brinkmanship got away from it, and it thought it would lose the deal and get egg on its face. Ever since that risk point was encountered by John Key, every media moment that he has he stands up—even though he knows it is not true that the Labour Party has been involved in any meaningful way in these negotiations—and says that it is the Labour Party’s fault, that it has been colluding with the Council of Trade Unions and with others because it wants The Hobbit to be lost to New Zealand. First, it is not true that we have been involved. Second, it is just not credible to suggest that we do not want The Hobbit made here, just like it is not credible for us to suggest that National does not want The Hobbit made here. This is baloney—this is baloney.
I want to read what John Armstrong said in the New Zealand Herald today in respect of the Government’s agreement to do what is completely unnecessary in respect of our law. It is already clear that in the film industry one can have a contractual relationship rather than an employment relationship; one has just to properly structure it. As Charles Chauvel has already said, it happens every day. If multimillion-dollar businesses, like the businesses that are running this project, cannot properly construct their contractual relationships so that they are contracts of service rather than employment relationships, then they are not as good as they think they are. It is a nonsense to suggest that they cannot already do this within current law.
This is all about National sticking it to the unions and trying to label the Labour Party at the same time. What does John Armstrong say? He says: “… the company walks away from what insiders say were tough negotiations with another $13.4 million to offset the films’ marketing costs.”, in addition to the US$15 million in extra tax write-offs. He says further: “Far more unseemly, however, is the Government’s kowtowing to Warner Bros and agreeing to put legislation before Parliament as soon as today to clarify the distinction between ‘independent contractors’ and ‘employees’ as it relates to the local film industry.”
I think Professor Roth at the University of Otago called it right in one of the major dailies in New Zealand last week when he said that this is just banana republic stuff, rolling over to Warner Bros and changing laws unnecessarily. I do not even think it was driven by Warner Bros; I think it was driven mainly by National and John Key, who were playing a game of brinkmanship with Warner Bros. I can understand a bit of brinkmanship in these negotiations, but it looked like it was going to turn sour, so National wanted someone else to blame. It has tried to draw in the Labour Party as if it was our fault that these negotiations had gone sour, when we were nowhere near it. National has been trying to say that this is all the unions’ fault, despite the fact that the unions pulled out of the game of brinkmanship long before National pulled out. At the end, the two players in the game of brinkmanship were Warner Bros and the Government. Let no one else be fooled: they were the two players left standing in the game of brinkmanship.
We all know that Warner Bros plays a tough game; it does it every time. There is lots of money involved. It has taken another $25 million from taxpayers through this game of brinkmanship. But what I object to is the Government letting Warner Bros write our sovereign laws in New Zealand when there is not even a material problem to be fixed.
If there is a material problem to be fixed, why is it not a problem in other industries? Electricians and carpenters work in all sorts of industries. Cleaners and couriers work in contractual relationships. They are exactly the same issues. They are no more difficult in this industry than in any other industry. Indeed, as Charles Chauvel has said, they have not been a problem in the film industry for the last 5 years.
This game of brinkmanship from the Government was getting worrisome. The Government is on the ropes for its lack of performance in economic development generally. Its Minister for Economic Development, Gerry Brownlee, has failed totally in his ambition to close the wage gap with Australia. It has had problems with mining in national parks. Its economic development strategy has been shown to be in tatters, and it was at risk of losing The Hobbit—it was at risk of losing The Hobbit.
I have to say that the Prime Minister plays a pretty good game of politics; I acknowledge that. But let us acknowledge it for the reality it is. This is a political game. Brinkmanship has been used as an excuse to stick it to Helen Kelly, to stick it to the union movement, and to try to label the Labour Party as being the cause of the problem, when the underlying reality is that there were some tough negotiations going on between Warner Bros and the New Zealand Government. The New Zealand Government took it to the wire. The “smile and wave”, “she’ll be right” attitude of the Prime Minister was carried on probably just a little too long, so they did not get down to the hard end of the negotiations until it looked like the movie was at risk of being lost.
The Prime Minister was very effectively and very politically trying to say that this problem was anyone’s but the Government’s—anyone’s but the Government’s. The Government took the brinkmanship to the wire; so did Warner Bros. Warner Bros released $25 million from taxpayers. That is bad enough, but I can live with it. That is the harsh reality of these transactions with a multinational like that. But there was no need for the Government to roll over and let Warner Bros scratch its tummy when it came to a completely unnecessary change to New Zealand’s laws relating to independent contractors. There is no widespread problem. This is a ruse on the part of the Government to hide how close it took it in its game of brinkmanship.
Hon STEVEN JOYCE (Minister of Transport) Link to this
Let us be clear: the only person who stuck it to Helen Kelly was Helen Kelly, in this incident. She was the only person who did that. The only ones who stuck it to the unions were the unions; they mucked it up hugely. They started—if Mr Parker wants to use the term “brinkmanship”—a game of brinkmanship and they nearly killed the Hobbit movies in New Zealand. That is the reality of it.
Let us be clear: if this Employment Relations (Film Production Work) Amendment Bill does not proceed through Parliament, the Hobbit movies will not come to New Zealand. That is the reality of it and Opposition members need to work that out, because they were incredibly silent over the last few weeks and then suddenly today they have landed on a particular side. They are not on the side of jobs for New Zealanders, they are not on the side of having the Hobbit movies produced in New Zealand, they are not on the side of growing the New Zealand film industry, they are not on the side of New Zealand tourism, and they are not on the side of New Zealand exports and growth. They are on the side of Helen Kelly and her mates, trying to rearrange the film industry to their way of thinking, and actually stopping the films from being produced in New Zealand. That is the reality of it, and it was the industrial action that was causing and creating the doubt for these movies to proceed in this country. That is the reality of it, and we cannot change it. We cannot rewrite history; we cannot say that they did not really mean it, and that they started the brinkmanship but others finished it. We cannot say all that. That is the reality of what was happening, and it was going to be the death of the international film industry in this country. Where were Labour members? Labour members were, quite simply, quiet, and now they are opposing the law that is needed to ensure that the Hobbit movies, and other movies, are produced in this country.
This Government is proud of its willingness to move to ensure that the two Hobbit movies can be produced in New Zealand. The films are massive undertakings, they will create massive numbers of jobs for New Zealanders, and it is this sort of thing that the Government is trying to encourage. Let it be recorded that it is the Opposition that is trying to stop it, it is the Labour Opposition that is trying to frustrate the views of New Zealanders, and it is the Labour Opposition that does not care about jobs, does not care about growth, does not care about tourism, and does not care about exports.
Mr DEPUTY SPEAKER Link to this
This debate has concluded. The question is that the amendment in the name of the Hon Trevor Mallard to omit the word “now” and substitute the words “this day 3 months” be agreed to.
A party vote was called for on the question,
That the motion be amended by omitting “now” and adding “this day 3 months”.
Ayes 51
Noes 68
Amendment not agreed to.
A party vote was called for on the question,
That the Employment Relations (Film Production Work) Amendment Bill be now read a first time.
Ayes 68
Noes 51
Bill read a first time.