Hon KATE WILKINSON (Minister of Labour) Link to this
I move, That the Employment Relations (Film Production Work) Amendment Bill be now read a second time. This bill is the Government’s response to an issue that has created uncertainty in the film industry. It provides a positive response to these issues by providing certainty for the industry, ensuring that the two Hobbit films are made in New Zealand, and securing thousands of jobs for Kiwi film workers. The film industry makes a significant contribution to the New Zealand economy. It provides employment opportunities and it advertises New Zealand to the world. It is important that we are able to provide the industry with the confidence to continue to invest in New Zealand.
This bill amends the Employment Relations Act 2000 so that it is clear that a person involved in film production work either is an independent contractor or is an employee, based on his or her employment agreement. This status cannot be challenged in court. The issue is described by employment law specialist Peter Cullen, who says: “If they sign a document saying they’re contractors, then that should be the end of it. We don’t want some disgruntled person who was happily a contractor for 10 years reaping all the benefits of that when we end the contract saying he’s really an employee and suing us.” Actor Mark Harrison agrees, saying: “This is an area that needed clarification ever since the Bryson case. It should have been changed by the Labour Government.”
The bill provides flexibility to parties by allowing them to choose to have an employment relationship if that is more appropriate for their particular circumstances. When workers have an employment agreement that provides that they are employees, they will be covered by the provisions of the Employment Relations Act and other employment legislation.
In summation, the Government believes that these amendments will benefit New Zealand through providing the film industry with the certainty and confidence needed to film in New Zealand. Further, this initiative will encourage the creation of jobs and economic growth. I commend this bill to the House.
Hon TREVOR MALLARD (Labour—Hutt South) Link to this
I move, That the motion be amended by omitting “now” and substituting “until the bill has been amended to remove clause 4 and insert a schedule of employee protections”. I think it is interesting, as one has been listening to the first reading debate, to hear the inconsistencies and the divisibility of the Crown being shown so quickly. We heard from the Hon Gerry Brownlee in question time today, and in his speech, an absolute assurance for the House that it was not a requirement of Warner Bros that this legislation be introduced. Then we heard the Associate Minister of Finance Steven Joyce very recently telling us that the legislation is a requirement of Warner Bros.
I know that this matter has been rapidly arranged and is not properly organised, but those Ministers cannot both be telling the truth. I am not going to accuse either of them of lying, but both of them are fixed with knowledge, both of them know what the facts are, and both of them have been involved in the negotiations, and what they said was diametrically, 180 degrees, opposed. I think that that is probably a symbol of the disorganisation that has been seen on the part of the Government on this matter over a long period of time—over at least 2 years. In fact, if Gerry Brownlee had been properly preparing for his role as Minister for Economic Development, he would have spent some time in the United States even before he took up that role, meeting with people and developing relationships so that they could work together properly. But in fact he chose to neglect that relationship.
We have been told that the world is falling apart and that under current industrial relations legislation it is impossible for films to be made in New Zealand. I have with me a list of 120 feature films that have been made in New Zealand in the last decade. I might say that it has been quite interesting to work my way through the list and work out that, notwithstanding my becoming more interested in videos over the last couple of years—not like Mr Jones, of course—there are still quite a few New Zealand videos of feature-length movies that I have yet to see. The point I am making is that those movies have been made. They have been made, the system works, and that shows there is no need for this legislation.
I think the Government would be well advised to listen to the comments of my learned colleague Charles Chauvel. Mr Chauvel has a lot of experience working in an area very, very close to this, and is someone who has looked at these issues carefully. In fact, I do not think it is revealing too much to say that he has been doing some policy work on behalf of the Labour Party on the whole question of dependent and independent contractors and the way the line should be drawn in that particular area. We heard from Mr Chauvel in the first reading—and we will hear more of this as we work our way through the legislation—the fact that the Government’s intention with regard to this bill will not be achieved by it. Some of that will be more a debate for the Committee stage, and I am pleased at the earlier ruling that the Committee stage will be a wide debate. We are looking forward to that. But even in the narrow areas that Mr Chauvel will be focusing on, that is the case.
I think what we have seen is a Prime Minister who has been too relaxed in the running of his Cabinet. He is a person who has smiled at Gerry Brownlee, as Gerry Brownlee tiptoes—well, he hardly tiptoes—
Hon Darren HughesHon TREVOR MALLARD Link to this
—stumbles—through this area. We have seen a Prime Minister who has not been holding his Ministers to account for being on top of their portfolios. We have a Prime Minister who is not requiring regular reports on issues vital to New Zealand. It should have been obvious. Certainly in the time that I was Minister for Economic Development, at our monthly meetings we would review items of importance to the portfolio; large-screen productions were always part of that, and we stayed on top of them. We worked out whether any issues were emerging, whether a phone call needed to be made, whether people needed to be invited to New Zealand, whether we needed to spend some time in the United States, whether our consul-general in Los Angeles should make some phone calls or make some visits, and when a Minister should be involved. It is just the ordinary stuff of the organisation of proper Cabinet government. It is part of the organisation of the executive. It is part of the role of the Prime Minister to ensure that the basic work of Government occurs. What we have seen with the approach of this Prime Minister is that he actually is not on top of that part of the job. This Prime Minister does very well on photo opportunities and, frankly, he takes a better photo than many of us. But what he cannot do, and what he cannot keep on doing, is ignore the basic job and be diverted on to the photo opportunities, rather than focus on the job at hand.
What happens then is what has happened now; we have policy and organisation that end up being run by Kevin Taylor, who is known by Mr Brownlee and Mr Joyce as “Captain Panic Pants”. They get “Captain Panic Pants”, Mr Kevin Taylor, running the show, and out of that we get policy and expenditure that is totally unnecessary. Because Gerry Brownlee, Steven Joyce, and Chris Finlayson—as Minister for Arts, Culture and Heritage, as well as Attorney-General—have not been doing their jobs properly, we have a crisis that is manufactured, in the end, by Warner Bros. Warner Bros can see an opportunity. Warner Bros can see a Government that has not been doing its work. It can see Ministers who are not across the facts and who do not understand the way the movie industry works. They do not understand that when Warner Bros has put $100 million already into producing The Hobbit in New Zealand, the chances are that it will want to do it here. So what do they do? In their panic, they start writing out cheques.
Again, I want to put on record that I am not opposed to the adjustment of the grants scheme. I adjusted it myself on three or four occasions after discussions to make it more appropriate, to make it work for New Zealand, to make it work for the film industry, and to encourage movies to come to New Zealand. That was a good thing to do. But I do object to writing out cheques not for joint advertising or for the promotion of New Zealand, but for the promotion of a particular movie. It is a direct subsidy; a cheque written out that goes straight into the profits of Warner Bros for work that it would have done anyway.
There is a precedent for how Governments do this. When they want to promote New Zealand they use our promotion agencies, such as New Zealand Trade and Enterprise and Tourism New Zealand. They leverage around the world, off the premieres of these movies; we do that. It is absolutely inappropriate to do what the Government has been doing—that is, throwing cash that we do not have a lot of, according to Bill English, at people, not because it is necessary and not because it makes a difference, but because the Government was not prepared to do the work that it should have done. The Government was caught with its pants down. John Key was caught with his pants down, and Warner Bros took advantage of that.
Hon Dr WAYNE MAPP (Minister of Defence) Link to this
I say that Trevor Mallard’s amendment will not be agreed to. It is stupid and it is fatuous.
Sometimes it is very clear where fault lies and where the jury of public opinion thinks it lies. More important, the jury of the people in the industry knows where the fault lies. It is absolutely clear who the offenders are. This is one of those cases. Unfortunately Labour, due to its ideological blinkers, cannot see that fact. The fault here lies with the unions.
Hon Dr WAYNE MAPP Link to this
One of the reasons I left was because of the unions, in fact. In this instance the unions were totally at fault. They caused this. They have caused the disruption, they have destroyed the certainty, and we have had to act. What is the evidence for that? I have to say it is pretty clear. Sir Peter Jackson was in no doubt. He said that the first indication he got of this was a global boycott of these two movies. There was no discussion and there were no negotiations; just the indication, a clear statement, of a global boycott. Meetings up in Auckland run by Jennifer Ward-Lealand, who I have to say disappeared out of this pretty quick, and Robyn Malcolm, who I have to say was a bit slower to leave, organised this global boycott, which was orchestrated by the Australian union. In that circumstance the world had changed. It was no good talking about the previous 5 years, or the previous 10 years, the world had changed due to, as Peter Jackson himself said, the triggering of the nuclear option—do that and one changes things fundamentally. Labour fundamentally refuses to recognise that if certainty is destroyed, then an industry is destroyed, and we came perilously close to that in this particular instance. So we have had to fix that up.
Labour members say, and I have heard a number of them say it today, that they support The Hobbit being filmed in New Zealand. On one level I guess they do; at an emotional level, I guess they do.
Hon Steven JoyceHon Dr WAYNE MAPP Link to this
Theoretically. But are Labour members willing to do anything practical? Are they willing to do the key things that have to be done to ensure that these movies come to New Zealand? Well, no, they are not. Labour members might say in a theoretical sense they support the film industry, but in a practical sense they do not support the billion dollar movies, not the $100 million movies, not the $50 million movies, and not, in fact, these little videos that have been just referred to. On the big issues on the day, Labour will be judged by the public to be against the Hobbit movies because it has not supported the key thing that matters in this instance.
I have read the Three Foot Six judgment, in which the court said “It was not open to the Court to reach a decision that had general application to the film industry.” So even though the court recognised that its decision would cause trouble for the industry, it had no choice under Labour’s law but to rule in the way it did. That is because the 2000 Employment Relations Act required the courts to ignore what was written down in the documents and follow other indicators, which were largely drawn from the Income Tax Act, as to whether there would be an independent contract or a dependent contract situation. The old law had the virtue of certainty. The one thing that business absolutely requires is certainty, especially global businesses and especially when the wreckers of the union movement have destroyed that certainty.
This Government is about to restore certainty, one way or another. We have said to the people in the industry that they have a choice. If they choose to be independent contractors, then that choice will bind them, which always used to be the law before the 2000 Act, and which was recognised by the Supreme Court itself. If people choose to be employees, then that will also bind them and that has consequences as well. I ask Labour members what is wrong with that. What is wrong with people having a clear choice? There is the independent contract on the one hand, and the employee contract on the other. What is wrong with that? There is a clear choice and effectively a situation where the contracts are of limited duration, not for permanent employment but for event-related situations where there is a clear ability to have that choice. The global industry needed that certainty because it had been disrupted. Who disrupted it? The unions did. Did Labour complain about that? No, its instinctive position was to support the unions. At one level I can understand that; Labour is dependent on union support. But that will also destroy its reputation in the industry at the moment and will destroy its capability to negotiate internationally.
This Government is clear on this: we are determined to grow the New Zealand economy. We are determined to do the things that will get innovation into New Zealand. Weta Digital itself received $5.8 million by way of an innovation grant from Technology New Zealand to build its capability. That money would be down the drain if people listened to Labour, because the only relevance of that money is if the movies can be made in New Zealand. One thing has been clear this week, and that is that National supports growth in New Zealand. We support innovation in New Zealand. Labour, on the other side, will go with its cloth-cap mates and will be condemned for it.
CHARLES CHAUVEL (Labour) Link to this
Before the Minister of Labour came to Parliament she was a respected practitioner in a respected firm in Christchurch. So I hope she will take a moment to listen carefully to what I say. I repeat the caution I set out in my first reading speech, which was that the Employment Relations (Film Production Work) Bill—
The reason that Mr Henare might also want to listen is that he used to know something about industrial relations when he worked for a union.
That is right—before he was fired. But he might want to have a listen, just like his colleagues, because the problem with this bill—despite all the union bashing from Mr Joyce and others, and despite all the rhetoric—is that it does not do what National thinks it will do. It will have real and problematic consequences for this Government from its small and medium enterprise constituency and others if National allows this legislation to pass in its current form. All I am doing in this second reading speech is asking the Minister to consider with some care what I am saying. I am not motivated by any desire other than to see this Parliament get the law right and to not make fools of ourselves on this occasion. But I fear that if we pass the legislation in its current form, as we appear likely to do, that is exactly what we will do.
The bill on its face provides that a film production worker, as defined, is to be excluded from the definition of “employee” under the Employment Relations Act.
Mr Mapp is right—unless they choose otherwise. A proviso deals with that in clause 4(2) of the amendment bill. Here is where the problem arises. The proviso is poorly drafted. It is poorly drafted and it will allow for a litigation bonanza if it is allowed to be maintained in its current form. I will repeat what I said in my first reading speech to describe why that is. The proviso applies employment law, notwithstanding the principal provision in the amendment, to a person who is “a party to, or covered by, an employment agreement that provides the person is an employee.” So the first problem is that it is a circular definition.
The second problem, and this is where the litigation bonanza will arise, is that as soon as anything goes wrong in a workplace relationship—let us use the generic term—in the film industry after the passage of this legislation, aggrieved parties will submit a personal grievance to the Employment Relations Authority and say that they should have the benefit of the proviso because they are subject to an employment agreement. They will do that because it is much cheaper, as we know, to pursue a personal grievance than it is to mount a commercial dispute through the Districts Courts or through the High Court.
But how will they be able to do this? Well, most people with some experience in employment law know a couple of basic things. Firstly, an employment agreement need not be in writing. Nothing in this legislation—again, despite the rhetoric we have heard from members opposite—will change that basic attribute of the law. Its existence and terms in any case are a mixed question of fact or law, in the first instance for the Employment Relations Authority and thereafter for the courts to determine on appeal.
How will they do this? How will the courts decide whether there is an employment relationship on foot that allows somebody to claim the benefit of the proviso? They will apply the tests that were applied in the Bryson case. The reason they will do that is those tests, despite what Mr Mapp said, have been applied by the common law courts to determine whether an employment relationship exists in any case for about the last 150 years across the common law world. Mr Mapp can shake his head as much as he likes, but if he reads the Supreme Court decision he will see that much of the criticism that was directed at the Employment Court judge was that she was said to have erred in law by applying some new test to discover the existence of an employment relationship beyond what would have applied after 2000. She is said to have misapplied the TNT Express Worldwide case, which was the leading case before Bryson. The Supreme Court said that there was actually no great difference in the tests. The law was not substantially altered on this point by the 2000 legislation.
I was astounded to hear the Minister quote an actor from Christchurch saying that the Labour Government should have fixed the law on its watch. The fact is that this was the last piece of litigation that dealt with this question in New Zealand. Five years ago the law was settled by the Supreme Court in the Bryson case. The reason the law has not been touched since then is that it is settled. It is really clear. The tests that should be applied to determine whether an employment relationship or a contracting relationship exists in any case are clear and settled matters of law.
We heard members opposite say that the law should be that if a label appears in a relationship—if somebody says they are a contractor, or that someone is a contractor to them and they are that person’s principal—then that should be the end of it. What if the facts in Bryson apply? What if the relationship bears no resemblance to an independent one? What if it is clearly an employment relationship by law? Should we condone the sham? Should we participate in the lie? Should Parliament say that the party with the economic power can call it whatever it likes, even 6 months into the relationship once it is well on foot, and that will be an end to the inquiry? Is it saying that, never mind whether the relationship is clearly something other than one of principal and contractor, if the person in the relationship with the economic power wants to call it that of contractor, then that should be the end of the inquiry? I do not think so. That will never be the law in this country, because the common law courts will never apply the law in that way—they never have. I seriously doubt that unless this Parliament uses the clearest words, which it is not doing on this occasion, it ever will.
Thanks to this amendment we will see more litigation, not less. This is a major own goal on behalf of the Government and the Minister. I ask again that they reconsider the drafting and that they think about whether this sort of legislation ought to be rushed through under urgency. In rushing through legislation that she thinks will provide certainty in the film industry the Minister is opening up a whole new area of uncertainty. Parliament will be led tonight into sharing that error unless there is a rethink. It is caused by rushed drafting, and because this amendment will not receive proper scrutiny. Unless there is a rethink it will be passed through all its stages in a matter of hours. There will be no select committee process. We will not hear from employment practitioners or Employment Court judges who sometimes take the time to submit on employment law reforms. I guess no one should be surprised by this. By my count this is the 42nd non-Budget piece of legislation since November 2008 to be the subject of the suspension of the Standing Orders. There is a reason that over the past 25 years we have bothered with the select committee process. People out there actually know more stuff about things than we do, and sometimes it is a good idea to take their temperature on these matters. This is certainly one of those occasions.
There is a final reason why our process today is so deplorable. If we put aside the bad drafting, which could well have the opposite effect of what the Minister intends, and if we put aside the poor process that is again being adopted here by this Parliament under this Government, the problem is that we are doing it at the behest of a foreign corporate. Whatever happened to being ambitious for New Zealand? Whatever happened to choosing a brighter future? What about owning our future, as a start? On that ground, as well as the other two I have described, this is a very sad day for New Zealand and for this Parliament.
Dr RUSSEL NORMAN (Co-Leader—Green) Link to this
I am speaking today on the “Warner Bros Employment Relations Amendment Bill”. I am speaking today to the Warner Bros Parliament, sponsored by Warner Bros—a Parliament that is now in session under the instruction of Warner Bros, so that we can pass legislation in urgency for the benefit of the multinational corporation called Warner Bros.
The Green Party is very pleased that The Hobbit is in New Zealand. The Green Party is very pleased that we have kept The Hobbit in New Zealand, but we do not believe that it was necessary for the New Zealand Government, National, to give away our sovereignty in order to keep The Hobbit in New Zealand. The National Government has compromised the sovereignty of New Zealand and of this Parliament in order to satisfy the whims of the multinational corporation called Warner Bros.
This Parliament is now the Warner Bros Parliament. The majority in this Parliament are now voting literally under the instructions of the executive of Warner Bros. Warner Bros is giving clear directions to the National Party—and, no doubt, the ACT Party—majority, whose members came to this House today in order to vote for a bill written on behalf of Warner Bros. Warner Bros executives and lawyers did the drafting of this legislation. Warner Bros executives have been involved in giving the direction to the New Zealand Government in order to pass this legislation.
This is a shameful day for what used to be called the National Party but is now called the Warner Bros National Party. It used to be called the National Party but now, sponsored by Warner Bros, the Warner Bros National Party is passing legislation in this House at the behest of Warner Bros.
Chris TremainI raise a point of order, Mr Speaker. I bring to the attention of the House what this speaker is doing. Under the Standing Orders he is unable to imply or convey that members of this House are under the influence of members from outside this House.
Hon Trevor Mallard Link to this
I think it has long been the case that there is an ability to refer to parties in that way. I do not think there has been any direct suggestion on the part of Mr Norman of corruption, as was implied by Mr Tremain. I think Mr Tremain might have drawn attention to it. No one is suggesting, for example, that that point of order was sponsored by WingNut Films or anything similar to that.
I refer to Speaker’s ruling 52/1. The member has been implying that we have been under the direction of Warner Bros, which he cannot do.
The ASSISTANT SPEAKER (Eric Roy) Link to this
I am on my feet. This is a robust debate. I do not believe that the member has breached the rulings on page 51 of Speakers’ Rulings, and there are two or three. He is skirting with a notion and being quite colourful, but it has to be quite a significant statement to breach page 51 of Speakers’ Rulings. I have been listening very carefully and I will continue to listen carefully. I caution the member that he is on the bevel, shall we say.
We are speaking today about the Warner Bros Employment Relations (Film Production Work) Amendment Bill. The Warner Bros bill is sponsored by Warner Bros, which has promoted the language in this bill. It is being promoted in the House by the National Party, which I have been calling the Warner Bros National Party because it seems to be promoting a bill that is to the benefit of the Warner Bros.
We are here under urgency. The entire New Zealand Parliament is operating under urgency in order to satisfy the demands of a multinational corporation called Warner Bros. This is a very sad day for this Parliament. Around us on these walls we have the names of battles that were fought in order to protect the sovereignty of this country. People gave their lives in those battles to protect sovereignty, yet the National Government, working under the instructions of Warner Bros, is introducing a bill into this House that contravenes—
Hon Dr Wayne Mapp Link to this
I raise a point of order, Mr Speaker. I refer to Speaker’s ruling 52/1: “It is not in order to say that the Government or a member has been dominated by, has received instructions from, has received directions from,”. The word “instruction” was used by the member. I believe that he has strayed beyond what is appropriate.
The ASSISTANT SPEAKER (Eric Roy) Link to this
I did caution the member that he was on the slope, or the bevel. The Speakers’ rulings on pages 51 and 52 state quite clearly that members cannot accuse a party or a member of taking instruction from outside the House. In that respect, if the member used those words, and I believe he did, then he crossed that line. I just caution the member. He is dancing on a bit of a pinhead here and I will pull him up if he crosses the line and say that he has done so.
Thank you, Mr Assistant Speaker.
Here we stand in this Parliament, acting under urgency, which the National Government has introduced in this House. For the sake of demonstrating the problem, I have called it the Warner Bros National Party. I am not suggesting that National is corrupt—I am not suggesting that, at all. What I am suggesting is that we in this House today have been called together because Warner Bros wants us to pass this bill. I am not suggesting that the National Government or any particular member is acting under the instruction of Warner Bros; what I am suggesting is that the National Government has worked with Warner Bros so that we have before us tonight this bill and we are acting under urgency.
I ask whether that is really why all the people commemorated by the names of battles on the walls around us fought wars to protect the sovereignty of this country. I ask whether we fought to have parliamentary democracy in our country so that a multinational corporation, Warner Bros, can effectively write the law of this country. Is that what it is all about? Is that what it has come to? In 2010, after all of these years and all of these struggles to protect our democracy and sovereignty, here we are today at the behest of Warner Bros, which is promoting this legislation. We are acting under urgency to put forward legislation that suits Warner Bros.
The second point I will talk about is the so-called great negotiating strategy of the National Government. If we are to accept the word of Warner Bros, on the face of it, it said that industrial relations was an issue for it. The Council of Trade Unions and the unions came out and said that they would guarantee that there would not be industrial action. If the Government was acting in the best interests of New Zealand in the negotiation between Warner Bros and New Zealand Inc, then the Prime Minister would have come out and said that he accepted the word of the trade union movement that there would not be industrial action, in order to maximise the negotiating position of the New Zealand Government.
If we wanted to maximise our negotiating position in the negotiations with Warner Bros, then we would have accepted the word of the trade union movement. The Prime Minister would have come out and said that he accepted there would not be industrial action, which would have undermined the negotiating position of Warner Bros. The Prime Minister did the exact opposite. He came out and said that he did not trust the word of the trade union movement and that he did not believe what it was saying. By doing that, he made it easier for Warner Bros, right?
So in a negotiation between the Prime Minister, representing New Zealand, and Warner Bros, the Prime Minister was on the side of Warner Bros. Instead of being on the side of New Zealand Inc, the Prime Minister negotiated on the side of Warner Bros by saying he accepted that there would not be industrial peace and that he did not believe the word of the trade union movement. By doing that, he made it easier for Warner Bros in the negotiation. It was a negotiation between New Zealand and Warner Bros in which the Prime Minister was on the side of Warner Bros, because he was saying that he did not accept the word of the trade union movement.
If we accept Warner Bros’ argument that industrial legislation was one of the negotiating points on the table, then surely the Government representing New Zealand should have tried to get the maximum best outcome for New Zealand. Instead, the Prime Minister actually helped Warner Bros’ position in the negotiation when he said that he did not accept the word of the trade union movement that there would be industrial peace. That is a fundamentally ridiculous negotiating strategy. If we have the best interests of New Zealand Inc at heart, it does not make any sense to argue a case that helps Warner Bros’ position.
The Prime Minister argued a case that helped Warner Bros’ position during this negotiation. We do not know how much that has cost us, so the whole project is somewhere in the order of $100 million in terms of tax incentives. We do not know how much that has cost us. Because the Prime Minister argued a position that helped Warner Bros in the negotiation, we do not know how much that added to the bill for the New Zealand taxpayer. We know that it did not help New Zealand in the negotiations to have the Prime Minister assisting Warner Bros by undermining the trade unions’ assurance that there would be industrial peace.
Why would the Prime Minister do that? It does not make any sense. If our Prime Minister is the great trader, the great negotiator—and I accept that he has a lot of experience—then I ask why he would take a position that assisted the other side. It is not logical unless, of course, the National Government actually wanted to weaken industrial relations legislation anyway, and that is the sad truth at the heart of all of this. National is happy to weaken industrial relations legislation and to make it harder for workers in the film industry than it is currently. That is the tragedy at the centre of this matter.
The last thing I will say—and I will say this to Labour and National—is that there is a logical outcome to free trade and globalisation. When we embrace a free-trade globalisation agenda, sometimes we find ourselves dealing with a company like Warner Bros, which is globally mobile. It has mobile capital. It deals with nation States that are trying to deal with mobile capital. The free-trade globalisation agenda has made it harder for us in those kinds of negotiations. It puts us in a more difficult position.
When we embarked down the globalisation pathway, the Greens and others had a lot of criticism of that pathway. We said that it strengthens global capital and weakens nation States. What we have seen in the last 48 hours is a graphic demonstration of the reality of the difficulty nation States have in negotiating with those global giants. I do accept that it was a difficult position. The Government made a mess of it, but it was a difficult position. I would ask those who have embraced a free-trade globalisation agenda to think about the logical outcome of that particular strategy and the difficulty it puts the Governments of democratically elected nation States in vis-à-vis globally mobile capital. Thank you.
Hon HEATHER ROY (ACT) Link to this
I rise to speak to the second reading of the Employment Relations (Film Production Work) Amendment Bill. The ACT Party will be supporting this bill, as we have already indicated. I will not use my full 10 minutes, but I will make some brief comments about what was said by the member we have just heard from, Dr Russel Norman. The capacity that people have to turn what they have seen happening into an argument that suits themselves is amazing, is it not? We have heard all sorts of things about the unions, and I will come back to them.
Firstly, I say to the Green member that those who participated on our behalf in the battles commemorated around this debating chamber—not that they knew they were doing that at the time or knew what would happen in the future—were fighting for freedom. That freedom extends to freedom in the area of employment. What we see in this legislation is a clarification of the sort of arrangement that somebody wants to have with the person who is paying him or her. That might be in an employment capacity, with an employer and an employee, or it might be a different sort of arrangement that somebody wants to have, in terms of having a contract. This legislation clarifies the difference between those two arrangements, and that is a good thing.
My regret with this bill is that it is called the Employment Relations (Film Production Work) Amendment Bill. I would like to have seen this bill called the “Employment Relations Amendment Bill”, and to see this provision apply not just to film workers but also to all across the board. That would have had me standing here very proudly on my feet to say that we were doing the right thing for the entire population of New Zealand, not just for those employed in the film industry. But this is a very good start. We will see what will happen with this bill, because who knows where it might lead. That is certainly the hope of the ACT Party.
I would like to come back to some comments made by the Green Party member, who was the previous speaker, on the unions. I ask how he could have possibly turned such an abortive attempt by the unions to do something positive for New Zealand into something that was completely counter-productive. It is also why we find ourselves in this very debating chamber tonight, when members could have been off home at 6 p.m., as they normally are on a Thursday evening. They could have been back in their constituencies, serving all New Zealanders, not just trying to patch up a botched job due to the inadequate actions of the unions. We had people here from Australia. Do members think that the chappie from Australia actually had any intention of helping New Zealanders get The Hobbit made here? Absolutely not. He had not a jot of an intention of doing that.
Hon Dr Jonathan ColemanThat is exactly right; I thank Dr Coleman. The chappie from Australia said that he did not care whether The Hobbit was filmed in New Zealand. The reason we are here tonight is the parties on this side of the House—the National Party, the ACT Party, I think United Future, and definitely the Māori Party—care about having The Hobbit filmed here, and that is why we are supporting this bill.
I regret that this legislation will apply only to the film production industry. It should apply across the board, to all New Zealanders, so that they can choose what sort of employment circumstances they want. I will end my call there. ACT will support this legislation, and we think, for the very right reasons, this is an important move for New Zealand.
TE URUROA FLAVELL (Māori Party—Waiariki) Link to this
Tēnā koe, Mr Assistant Speaker Roy. I am enjoying listening to the discussion, with ears fully open, and will continue to support this bill.
DAVID BENNETT (National—Hamilton East) Link to this
Today we are discussing the Employment Relations (Film Production Work) Amendment Bill and I think it is time we looked at the reality of what is happening in this House at the moment. The unions went out there and lost a big deal for New Zealand. They went out too hard, and they were going to lose this huge deal for New Zealand actors, New Zealand artists, and New Zealand tourism. They stuffed it up; that is what happened. John Key and his team went in and negotiated a deal that has saved the deal for New Zealand. That is what the public knows.
The Labour Party and the Green Party members are sitting in the House tonight, in the knowledge that they lost it. They know they stuffed it up. They know that their mates made all the mistakes. They come in here and talk about sovereignty and issues like that. They are trying to defend themselves and their actions, and say that it is something bigger and different. The reality is that they were donkey deep with the unions. They were behind the unions. They set it up. They were trying to disrupt things and make sure this deal did not come to New Zealand.
Labour members did not want the Hobbit movies filmed in New Zealand. They did not want them here. They disrupted things for political purposes. The reason we are here now is that the Labour Party lost that deal. National has made the deal happen, and today we will be defending that in this House.
The public out there know that the Government has acted in the best interests of New Zealanders, in the best interests of our actors, and in the best interests of our artists, and that it has the best interests of our film industry at heart. It is not a puppet for a union that is trying to make political capital out of events. It is not a token supporter of this industry, which Labour has been for the last 9 years. We are real, we are there, and we are supporting this industry.
How dare those members come into this House and try to say that this debate is something about sovereignty, when they are trying to cover their tracks. They know deep down in their hearts that they wanted New Zealand to lose The Hobbit. That is what the Labour Party wanted and what the Green Party wanted. They did not want the best thing for New Zealand; they just wanted to lose it so they could go out and say that National has not delivered for the film industry. I tell those members to get in the real world.
Hon TREVOR MALLARD (Labour—Hutt South) Link to this
I raise a point of order, Mr Speaker. It is out of order to question motives or to attribute motives in a way that causes offence. I have taken offence at the comments the member has just made.
The ASSISTANT SPEAKER (Eric Roy) Link to this
I am trying to be consistent here. I initially ruled that Dr Russel Norman was on the slope but not out, and I feel that David Bennett was in about the same territory. He was heading to be out, but I do not believe he actually crossed the line. This is a robust debate, but I do not believe that he made an accusation of improper motive; I do not believe he actually did that.
CAROL BEAUMONT (Labour) Link to this
I rise to speak on the second reading of the Employment Relations (Film Production Work) Amendment Bill. When I spoke in the first reading I proposed a number of questions. Just to recap, I was looking at issues about sovereignty—and other members have spoken about that—the economic and political sovereignty of our country. I was looking at the ability of this Government to handle industrial disputes, and I will talk a little about that in this contribution. I also talked about the many questions that the public and the media will be asking, I believe, over the next few weeks, as we get over the hype and get down to the reality.
I would like to inject some facts into the debate. I think the contribution made by the previous speaker questioning the commitment of this party to the film industry, and to the creative industry more generally, was just ridiculous. On the facts, on Labour’s record, it will be seen that that is the case. I think it might be worth that member taking the time to have a look at what was done under the previous Labour Government, in terms of our film industry. I also think that the facts so far have talked about what the real situation is in relation to the clarification of the status of workers in the film industry, and I will come back to that point.
I think Charles Chauvel raised a really important point about what this bill will do, and whether it will have some fairly major consequences that will be in complete contradiction of what the Government says it is trying to do; I hope that the Minister is taking that seriously. David Parker also raised some very important issues about negotiation and brinkmanship, and the Government’s role there.
Facts are important in a debate, and I hope that members on the other side start to inject some facts into the debate instead of spin after spin. I am sure the speaking notes of members on the other side of the House say things like: “Remember to praise the Prime Minister; John Key saved the day.”, and “Remember to attack the unions.”, because, after all, unions of course could not possibly want jobs in this country—that would be hard to believe, would it not? I am sure the third part says: “Don’t forget to say that Labour doesn’t want The Hobbit made in New Zealand.” This is all completely ridiculous spin. Spin is what it is.
The list of questions I raised in my first reading speech have now been added to, and after dealing with the matter of this dispute I will hopefully come back to my additional questions. The Government’s role in the handling of this dispute, I think, has been quite extraordinary. The Minister of Labour has been completely absent, and that has been the situation since this Government was elected. In any situation that has involved difficulties in relation to negotiations, and at times when some big issues have been on the table, there has been no sign of the Minister of Labour. She is just not interested in getting in there and trying to work with the parties.
The reality has been that the change that was being talked about, the issue that was on the table, was not about clarifying the status of people in the film industry. It was not about whether they were independent contractors or whether they were employees, so goodness knows why we have this legislation in front of us. The issue at dispute was about independent contractors trying to improve their situation and their conditions of being independent contractors, and having the ability to act collectively to do that. It was not about getting a collective employment agreement, as some have asserted; it was about acting collectively. That is not a surprise. It is something that has happened before. Others in this House are fully aware of the importance of the pink book that sets industry standards. The dispute was about trying to improve on those standards. That is what was at stake there. International actors organisations were supporting New Zealand actors in that intention. That is what was going on. It was not about whether people were independent contractors or employees, and whether they were negotiating a collective employment agreement; it was about whether they were able to act collectively to improve their situation. The bill before the House does not deal with that issue, so I just make that point.
I have been listening very carefully to the debate, and I think that more and more questions are coming up. I hope that the New Zealanders who are listening to this debate will take the time to think through some of these things. I am sure they will, because people are not stupid. People do not think that this is about whether Labour wanted to destroy The Hobbit and the chance for The Hobbit to be made in New Zealand. That is clearly ridiculous; it is not about that issue.
What did Warner Bros require, or not require? We have heard completely different views. Mr Joyce said that Warner Bros did require this legislation that is before the House, and Mr Brownlee said that the company did not require anything—that none of this was Warner Bros’ idea; it was the Government’s idea.
Another question that has been added to my list asks why there is such a need to attack unions and vilify people like Helen Kelly. What is that about? I think that what is going on here, despite Heather Roy’s great assertions about freedom, is that the other side of the House has no commitment to the freedom for workers to join together collectively, and no commitment to the freedom for unions to attempt to improve the situation of people in their industry so they can act together. In fact, legislation that we were dealing with in the Transport and Industrial Relations Committee just this morning shows quite clearly that this Government is willing to reduce rights, and to attack workers’ conditions and their ability to organise. So I think that the reason for speech notes across the House, and for every single member across the House to attack unions, is that that is what those members believe. They believe that unions have no role.
Frankly, I think the vilification of Helen Kelly is most unfortunate. Not too long ago John Key was very pleased to ensure that Helen Kelly was right there at the Job Summit, and National was supposedly great friends with the trade union movement. But I think that this bill is about the Government not liking the opposition that the trade union movement is putting up to the changes that this Government is putting in place; the trade union movement is calling this Government to account for a lack of focus on jobs and on skills. When people start to analyse the facts, they will see that the Council of Trade Unions intervened to try to resolve this dispute, and in fact it was successfully part of doing so. That fact has been conveyed. People can deny it as much as they like; the facts are there. Warner Bros knew that the ban had been lifted, that the dispute was settled, and that the parties intended to renegotiate the pink book I referred to earlier.
I will raise a few other questions. As I said, I hope the Minister has taken very significant note of what my colleague Charles Chauvel, who is an expert in employment law, has said about this bill, because it is important that we look at it. This is the problem in forcing through legislation under urgency, and in not getting advice or submissions or having people who know what they are talking about when analysing legislation.
Another question we need to ask—and I am sure the public will be asking—is why on earth would there be truth in what the Government has been saying about Labour not supporting the film industry or The Hobbit being made in New Zealand. I have already commented on our track record and I think the facts speak for themselves, but let us use just common sense and logic. We, like everybody else, as all the speakers from this side of the House have said, are very proud of our film industry. We are very proud of the contribution that films like The Lord of the Rings have made to our economy in providing jobs and in profiling our country. So what the Government has said just does not stack up. I wonder whether members opposite think that the entire country is going to let them get away with the assertions and untruths that are coming through in this debate. I think that people will start to unpick the facts, now that the issue of The Hobbit being made in New Zealand is settled. They will start to look at what happened and at who said what. They will start to ask some of these questions, so I think members really need to start debating the facts.
Finally, going back specifically to the bill that we are dealing with in this House tonight, I say that this bill will not fix the problem that those across the House say exists.
Hon TAU HENARE (National) Link to this
Let us be quite clear in the second reading of the Employment Relations (Film Production Work) Amendment Bill. I will quote John Armstrong, that great resident—although he has not got his citizenship yet—in the New Zealand Herald today. He said: “The Government has made the right decision for the film industry and for the wider economy.” So why are we not happy? We should be happy. Do members know why? Because there are thousands of jobs being created by none other than John Key and Warner Bros sitting down and seeing whether they could not work through the issues. There will be the promotion of this country around the world, with the help of people who know what they are talking about when they make movies—that is, Warner Bros. That is a great thing.
Another thing that we should be happy about is that there will be at least $700 million going into our economy. That is not a maximum; that is a minimum. A minimum of $700 million will go into our economy, and who sneezes at it? The Greens and Labour.
Kelvin DavisOh, that is right. That was from the member from up north somewhere. Basically what he is saying is that the workers do not count. In the last couple of days the union movement and Labour went and scabbed on their own members. They went and scabbed on workers in this country, and all the ex - union officials know what I am talking about.
Hon David Cunliffe Link to this
I raise a point of order, Mr Speaker. I take offence at the use of the word “scab” in relation to the Labour Party. We may be many things, but we are certainly not that.
The ASSISTANT SPEAKER (Eric Roy) Link to this
I am reflecting on that word. I am uncomfortable with it, so I ask the member to desist from using it.
Hon Trevor Mallard Link to this
I raise a point of order, Mr Speaker. I am going to ask you to be a little stronger on that word. It is a word that has been ruled out, and people have apologised for it in the past. To be absolutely clear, for members of the labour movement it is an extremely offensive term. I think you need to look at the face of the member who used it to see that he knows that.
Throughout yesterday the Opposition, particularly Mr Iain Lees-Galloway and the member across the House, Kelvin Davis, used the term “bent over”, which is exceptionally offensive, particularly because that party claims to look after women’s rights and gay rights. I have to say that that was particularly offensive.
The ASSISTANT SPEAKER (Eric Roy) Link to this
I happened to be in the Chair at that time, and I asked that member to desist in much the same way as the member has been asked on this occasion. It is a robust debate, as one would expect. I have said to the member to not use the word again, and I will stand by that. I understand what other members have done, but this a robust debate. I ask that the word not be included from this point on.
Hon Trevor Mallard Link to this
I raise a point of order, Mr Speaker. I want to try to get this one right, because I cannot remember whether there is still a list of proscribed words, but there certainly used to be a black book to which Speakers went that had a list. That list included the word “scab”. The problem that I have is that previous Speakers have repeatedly ruled it out. It now appears like you are saying that it is not something to be withdrawn and apologised for, when previous Speakers have ruled in the opposite direction.
The ASSISTANT SPEAKER (Eric Roy) Link to this
The member will know that I have been here for some time as well, and I have quite a good memory. I am trying to recall any circumstances surrounding this word. I agree that it is an inappropriate word to use in this House. I have been looking at Speaker’s ruling 55/7, which states a word or phrase is inappropriate if it will bring disorder to the House. I have simply ruled out the word. From this point on, it is not a word that will take place in this debate . I stand by that.
Hon Trevor Mallard Link to this
I raise a point of order, Mr Speaker. I think you are aware that notwithstanding the unfortunate nature of your ruling, he is not allowed to refer to it.
The ASSISTANT SPEAKER (Eric Roy) Link to this
The member ought not to have referred to it as being “unfortunate” on my part, as well. We will put this word and any acknowledgment of it completely away.
Hon Trevor Mallard Link to this
I raise a point of order, Mr Speaker. If we go back to just the first three words that the member used, we see that they were a comment, again, on your ruling. I think there is a matter of being able to take an instruction from the Chair, rather than to comment on the rulings the Chair has been making. Thank you.
The ASSISTANT SPEAKER (Eric Roy) Link to this
I think it is now time for the dinner adjournment, where we shall all partake of some sustenance and reflect on our good behaviour in the House.
I raise a point of order, Mr Speaker. Before the dinner break, I was told that I should not use a certain word. I am asking for clarification. Am I not allowed to use the word full stop, or only in—
Mr DEPUTY SPEAKER Link to this
I am not aware of the word. At this stage we are starting a new session after dinner, so I ask the member to continue. It depends on what the word is. If it offends somebody, or someone sees it as a personal reflection under Standing Order 116, they can object to it and take offence. Let us move on.
Every word has a genealogy or a whakapapa of where it comes from. The word that I am not allowed to use—
Jacqui DeanI do not get upset by those members. They know what they are and they know what they and their mates, them and that mob from Australia, did to workers. “Mob” is not a derogatory word; in fact, the Aboriginal people use it as a word for a group of people. The mob from Australia came over, then Helen Kelly and that Malcolm woman conspired. They thought they were conspiring. I suppose one, Robyn Malcolm, did it because she really wanted The Hobbit to be made in New Zealand, although I have my doubts. As for the others, I say that Helen Kelly would not know what time of day it was over this issue. She fell for the trap that was put there by the Australian guy—what is his name? Steven Fibs?
That is absolutely right. I will continue: “snitch”, “squealer”, “tattle-tale”, “weasel”, “whistleblower”, and this one to round it all off: “blackleg”. That is a really nasty one. They all come from the word “scab”. That is right; I have said it.
Hon Trevor Mallard Link to this
I raise a point of order, Mr Speaker. We had quite a long discussion with the Chair previously, and it was made clear that that word could not be applied in the House.
Mr DEPUTY SPEAKER Link to this
I thank the member for that. I watched that interchange before the dinner break. The member cannot use the word “scab”.
Thank you. This is nothing more than a failed attempt by the Australian to do what? I do not know. To ruin the film industry? I say congratulations to our Prime Minister. The members opposite say that it cost us. I say to them, listen, it cost us nothing. It cost us nothing, because we will get thousands of jobs in return, and $700 million at a bare minimum will go into the economy.
What we are doing here tonight is not about railroading workers’ rights or taking away rights; it is about saying that if someone signs on as an employee, then that is what they are; but if someone signs on as an independent contractor, then that is what they are. That is what we are doing tonight. To say that we are in the hands of Warner Bros and all that sort of Cold War stuff is really old socialist, Commo, red, pinko rubbish. It harks back to a golden age when some of this House followed some naughty people from around the world who were communists and Trotskyites. It is really hard case to listen to some of the speeches from the other side of the House. It really does hark back to a golden age for them, but this country and this House have moved on.
We want to see a thriving film industry. By doing what he did the other day, John Key has saved the film industry. In fact—and I might finish on this point—he took away any chance, although it was very slim, that the Labour Party had of winning the next election. He took it away. Now what we see in the House tonight are some kids who are really, really disappointed that they have had their little toy, their little dummy, taken off them. That is what we have.
Hon DAVID PARKER (Labour) Link to this
Well, I will not make reference to who the dummy is around here. I think it is obvious that some people enjoyed a good dinner before they came back to the House, given the mispronunciation of names that was prevalent in the early part of the previous speech.
As I said in my address on the first reading of the Employment Relations (Film Production Work) Amendment Bill, it is pretty clear that there has been a lot of brinksmanship around The Hobbit. There was brinksmanship by the unions, there was brinksmanship by Warner Bros, and there was brinksmanship by the Government. We all know that Warner Bros plays a hard game. It did it when Labour was in Government. It always tried to ratchet up the terms and conditions that it got so as to make its film enterprises more profitable, and it has done it again with this Government.
According to Mr Tau Henare, what has happened here has cost nothing. “It cost us nothing” was the phrase he used. Warner Bros has had $34 million in extra money out of the New Zealand taxpayer—
Yes, it is the same as the amount of extra money that went into the private school sector in the Government’s recent Budget—$34 million was at stake for Warner Bros. It is a lot of money even to Warner Bros, and it played a game of brinksmanship.
It is also true that the union movement had played a game of brinksmanship earlier. The union movement had pulled out by 18 October, yet some parties to this debate have had the dishonesty to assert that after 18 October, the union movement was still holding a gun to the head of the other parties involved. We had an email from one Warner Bros person to another on 18 October, American time, showing that Warner Bros knew by then that the threat that it perceived to be apparent from the union movement—the threat may have been overstated, but it was whatever threat Warner Bros saw—had gone. Yet after that date we had the Government pretending that that was the reason it had to take this step in respect of this law change, which has been forced upon us.
We also heard Mr Henare say that what the Government is doing is making it clear that if people are contractors, then they are contractors, and if people are employees, then they are employees. That is not what this legislation actually does. Phil Twyford described this legislation to me in his office before the dinner break as formalising a fiction. That is a very good description of what is happening here. It allows people to pretend that an employment relationship is a contractual relationship, and even if it is an employment relationship, they will call it a contractual one. It formalises a fiction.
Why is that important? It is important because there are different rights and responsibilities, depending on whether people have a contractual relationship or an employment relationship. Contractors do not get holiday pay, they pay their own tax, they are not entitled to the minimum wage, and they are not entitled to sick pay. That is absolutely permissible under our system of law. I am not criticising that; people can choose to have a contractual relationship rather than a relationship as an employee. But the point is that they can already do that at law, and we do not need to have this law, which effectively formalises a fiction.
People can, under this law, have an employment relationship, but, at law, it will be a contractual relationship without employee protections. That is what this law does, and it is completely unnecessary, because the law relating to contractual relationships is already clear. It has been clear since the Supreme Court decision that was referred to in earlier speeches was delivered 5 years ago. That law has not been problematic since. The organisations that are involved in this multi-hundred-million-dollar enterprise have the very best of lawyers. They have the very best of systems. They can ensure already that they engage people through contracts as contractors rather than as employees. They do not need this legislation.
The reality is that this legislation is a piece of political opportunism by the Prime Minister and the National Government. They played a game of brinksmanship in respect of whether they could get Warner Bros over the line. I am not blaming the Government for all this brinksmanship; Warner Bros always plays this game.
The Prime Minister and the National Government were not sure that the $34 million they eventually paid was going to get them here. They thought that they might lose this deal to Ireland or some other film-making country, so they wanted someone else to blame—despite the fact that the unions had already stopped their game of brinksmanship and despite the fact that the Labour Party has never been meaningfully involved in these negotiations. Indeed, I can attest to that. I remember talking to Trevor Mallard, who said that it would be inappropriate for Labour to be stepping into this space because that was the role of the Government, and that if he had been the Minister—and he used to be the Minister—and a National Opposition had involved itself in those negotiations, then he would have thought that that was inappropriate. That is why Trevor Mallard said that we should stay out of these negotiations, and we did. So for the Prime Minister to assert that we are somehow complicit in trying to undermine the likelihood that The Hobbit would be filmed here is absolute rubbish.
I will deal with something that Rodney Hide said. Rodney Hide came down to the Chamber and said that Labour members were without principle. That little hobbit is the man who came to this Parliament and put David Garrett into the position of his law and order spokesperson, after he had taken a donation from the Sensible Sentencing Trust. He put him in that position, knowing that he had used name suppression to keep his conviction for stealing the identity of a young child for the purpose of passport fraud out of the public eye. That sort of double standard is what I call a lack of principle. That is a lack of principle. I say to Mr Hide that he should not come down here and talk about principle, and neither should the Prime Minister, because the Prime Minister described Mr Hide’s dealing with those issues as “well handled”. That is a lack of principle from the Prime Minister. That is a lack of principle from ACT. I tell Mr Hide that he should not come here and lecture us about principle, because those are both unprincipled acts.
This legislation is unnecessary. I agree with those people who say that it is not all the fault of the National Government that it had to pay more money in order to secure the Warner Bros films. I agree with that. We did it ourselves when in Government. However, I would criticise the way that the Government has done it, as it is funding an individual enterprise, rather than changing the criteria for major films that could be applied to other enterprises. To me that is really just interfering in an individual contract too directly, rather than using a principled approach.
Paul QuinnPaul Quinn asks about the Auckland Airport sale, but actually I was exercising ministerial discretion. The member obviously does not understand the difference. National would have approved the sale of Auckland Airport to overseas interests, just as National has allowed its tummy to be tickled by Warner Bros and allowed our labour laws to be changed as a consequence of this deal, and just as it has ticked off every land purchase sought by overseas owners since it took office.
This legislation is not necessary. It formalises a fiction. We see that the Minister of Labour, with this rushed legislation, has already had to put an amendment on the Table, because she learnt from what Charles Chauvel said in an earlier contribution. Charles Chauvel was right, and I see the Minister is nodding. I thank her for the acknowledgment that Charles Chauvel was right on the point that this law, as drafted in this hastily put together legislation, would not have even achieved the intent that the Government wanted to achieve were it not for the amendment that the Minister has now put forward. We will be voting against that amendment, as well, but no doubt National, with the support of ACT and the Māori Party, will ram it through, under urgency.
Oh, here we go! We have The Muppets now. We are actually debating The Hobbit, not The Muppets. We have the two elderly puppets on the back row—Tau Henare and Paul Quinn—who are as ill informed as those elderly puppets in The Muppets. They cannot quite hear what is going on, always get a bit confused, and make inappropriate interjections.
This is bad law. It is unnecessary law. It is driven by a political agenda on the part of the National Government, which was so close in its brinkmanship that it wanted someone else to blame.
Dr JACKIE BLUE (National) Link to this
I am pleased to speak to the second reading of the Employment Relations (Film Production Work) Amendment Bill. This bill will bring clarity to an area of employment law that needs it. It will make clear the status of an employee versus a contractor. Basically, employees are employees and contractors are contractors, and someone who is employed as a contractor cannot later be deemed to be an employee. It is as simple as that. It will give certainty to both employees and contractors and, certainly, to the film sector, which welcomed this bill. It is important to note that when individuals want to work in the film sector, it would be a voluntary choice as to whether they will be contractors or employees. No one will be coercing them into either role; it will be a free choice. It is all about choice.
This situation has arisen from the industrial action over the last few weeks, which highlighted this very concern about the lack of clarity, so the Government has responded to it. This bill will rectify the situation so there is clarity and no confusion. Employees are employees and contractors are contractors. It will bring clarity and give confidence to the film sector. The two Hobbit movies will bring an estimated $670 million to the New Zealand economy, and this legislation will protect the jobs of thousands of New Zealanders. Surely that must be welcomed, particularly in this economic climate. The film industry, in total, is worth almost $3 billion to the economy. This bill will help to give confidence to that sector, and that also should be welcomed. I am sure that the Hobbit movies will not be the last movies that are made in New Zealand. I am sure there will be many more, because there will be much more confidence.
I was overseas for the past week, and I was getting reports from time to time. I was quite concerned that the whole situation was unravelling and derailing.
I certainly was. Fortunately, the Prime Minister stepped in and was able to sort all this out. Thank goodness for his doing so. It has been a very sorry affair.
Iain Lees-GallowayNo. The Government is determined to use this opportunity to present New Zealand in the best light as a great place to visit, and to promote tourism. I know that this legislation will help with that. I commend this bill to the House.
Mr DEPUTY SPEAKER Link to this
This debate is concluded. We have an amendment in the name of the Hon Trevor Mallard. He has moved an amendment to omit the word “now” and substitute the words “until the bill has been amended”, to remove clause 4, and to insert a schedule of employment protections. The amendment is not in order. On a second reading, an unequivocal decision must be reached: either the principles of the bill are adopted or they are not. I refer the member to Speaker’s ruling 103/5. An amendment that adds words, attaches conditions, and leaves the House’s decision unclear is out of order.
Hon TREVOR MALLARD (Labour—Hutt South) Link to this
I raise a point of order, Mr Speaker. I want to discuss the ruling you have just made. I refer you to page 365 of Parliamentary Practice in New Zealand by David McGee, and to the section on adverse or reasoned amendments. He says: “An amendment moved on the question for the second reading may put forward an abstract proposition relating to the bill—what is known as a reasoned amendment. The proposition will be unfavourable to the bill receiving its second reading that day, but it must offer an alternative to the second reading. An amendment declining to give a bill a second reading until certain amendments had been made to it and the money saved expended in other ways, was accepted because it offered an alternative course of action to the second reading.”
What my amendment does is give an alternative course of action. The alternative course of action is obviously the inclusion of an area of employment protection. So it satisfies that test. I assure you that I have looked very carefully at the Standing Orders and Speakers’ rulings in this area, and I have taken advice on it. The advice that I have is not consistent with the ruling you have given. I do not know whether there is much more that I can say, other than that this is considered, it is reasoned, and it meets the McGee test set out on page 365, and that area of the Standing Orders has not been changed.
Mr DEPUTY SPEAKER Link to this
I note in regard to the comment relating to McGee, page 365, that a reasoned amendment must offer an alternative to the second reading, and that the issues contained in the bill must be taken up in a different way or forum. The member’s amendment simply offers alternatives for possible consideration in the Committee, if they are, in fact, in order. There is opportunity for the member’s amendment to be dealt with in the Committee of the whole House. I ruled it out for those reasons, so I intend to put the question.
Hon TREVOR MALLARD (Labour—Hutt South) Link to this
I raise a point of order, Mr Speaker. I refer you to the very example in McGee where it indicates that “certain amendments had been made to it and the money saved expended in other ways,”. That is something that could also have been dealt with in the Committee stage of the legislation—at least, according to the book by the previous Clerk of the House, and based on the one example, the one precedent example that is given there, and my understanding is that that goes to the Reserve Bank of New Zealand Amendment Bill back in 1939. So the precedents are not new for this sort of change, and the advice I have received is that there has been no change in the Standing Orders that would change that.
So I reiterate that, although it might be an alternative to deal with this in the Committee stage—and I am sure there will be discussions in Committee about quite a large number of alternatives—the fact that it may be dealt with there does not mean it has to be. The example given—money saved being expended in different ways—is something that could also be dealt with very easily within the Committee stage. A finance bill or a Reserve Bank bill are the obvious cases. The case now is that—
Mr DEPUTY SPEAKER Link to this
I thank the member for those comments, and I have McGee open at the page. My ruling is based on the fact that the amendment you have put forward is differently framed from what you are referring to in McGee on page 365. The member’s amendment is entirely in terms of omitting a clause and inserting a schedule. This is a very narrow bill; it has only four clauses. So doing what the member wants to do is foreign to the bill, and I have ruled the amendment out of order on that basis.
Can I refer the member to McGee—obviously you have McGee there—page 364. It states: “On the second reading of a bill members are asked to endorse the bill by giving it a second reading, but they may instead decide to defer a decision on it or decide definitively that it should not proceed. Deferral or defeat can also be effected by amending the question for the bill’s second reading. The question for the second reading of the bill is open to amendment in a way that is relevant to one of these objects.” The member’s amendment does not ask for a deferral or for a defeat. “An amendment which merely seeks to add words to the motion does not do either of these things. Such an amendment would attach conditions to the second reading and leave the House’s decision unclear.” On that basis I have ruled the amendment out.
A party vote was called for on the question,
That the Employment Relations (Film Production) Amendment Bill be now read a second time.
Ayes 68
Noes 51
Bill read a second time.