Employment Relations (Film Production Work) Amendment Bill

Hon GERRY BROWNLEE (Leader of the House) Link to this

I raise a point of order, Mr Chairperson. Clearly, discussions are going on that indicate that I may be wasting my time, but I think the reality is that this debate sets a very bad precedent—a very bad precedent. Clause 2, which has the Act coming into effect the day after it receives its Royal assent, has been passed. An amendment to clause 2, which would have required the Act to come into force on 1 April 2012, was defeated by the Committee. In defeating that particular date, the Committee said that it expects that the bill will be enacted at that time, 1 April 2012. It seems to me that because the Committee expressed very, very clearly that it specifically rejected that date, it is an utter nonsense to then immediately go through this exercise of working out whether the bill should expire before that date. We are getting into an absurd situation where the Committee expresses its will that the bill will come into effect on 1 April 2012, but is then asked to consider the expiry of the Act on 8 November 2010. That is an utter nonsense.

We have been through this sort of exercise last year, in fact—and, at times, this year—and I know that the argument will be that one question is about commencement and the other is about expiry. But commencement and expiry are not unlinked. If the Committee has expressed a desire that something should not only have commenced but be enacted on 1 April 2012, it would then be an absurdity for the Committee to ask itself whether it would be a good idea for the Act to expire on 8 November 2010. We end up getting into all sorts of ludicrous situations. We could equally go into a day-by-day arrangement, and we have already had an expression from the Speaker—indeed, I think Erskine May put forward the proposal—that if a decision was made by the Committee about a future date, and there was rejection of other dates leading to it, then there was no need to go day by day. This debate is in that same category.

To be clear, I say that the Committee, in my mind, has said that it expects that this bill will be enacted as a law on and beyond 1 April 2012, but it is now being asked to consider having the Act expire on 8 November 2010. That is retrospective on the decision that has previously been made by the Committee, and it would be utterly appalling if we have to spend time going through this exercise today.

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

I do not want to take much of the Committee’s time, because I think the answer is pretty obvious. I think most members in the Committee understand the difference between starting and finishing, between commencement and expiry. The comments made by the Leader of the House could well be good debating points during the debate on the expiry date of the bill.

Clearly, some members on this side of the Chamber think that if such bad legislation is to come in, it should be short-term legislation and should have a sunset clause. The concept of a sunset clause is one that is common. Normally I accept the view of the member that there are a few more actual sunsets before the sunset comes down on legislation, but I think it is also fair to say that this is very controversial legislation. Members have a strong view and they have a right to debate it.

Hon DARREN HUGHES (Senior Whip—Labour) Link to this

I think the danger here is getting into a discussion or debate about the substance or nature of the amendment. The Opposition does not want to do that by way of a point of order; we want to do that by way of debate. The reason for my speaking to the point of order is that the Leader of the House on several occasions has referred to decisions that the House had made in respect of amendments and clauses in the bill. I think it is very important to stress that the House has taken no decisions. We are in the Committee of the whole House, and it will be a decision for the House about whether it accepts the report of the Committee. If the Committee makes a series of decisions that are not logical or do not follow, then the House can make the decision not to accept the report of the Committee of the whole House. I think the assertion by the Leader of the House that amendments should be ruled out because of decisions made by the House is not the case. They are decisions that may be made in the future, but up until that point the Committee of the whole House, across all the clauses of the bill, is free to consider amendments providing they are within order.

As Mr Mallard has stated, his amendment is in order. The Leader of the House objects to it; he disagrees with it and I suspect he will vote against it. But those are debating matters, not matters of whether the amendment is in order, because this Committee is yet to report to the House on the final shape of this legislation.

The CHAIRPERSON (Hon Rick Barker) Link to this

I thank members for their contributions. I say that the Leader of the House has raised, indirectly, the issue of substantiality, which is that amendments need to be significantly different from each other. I say to him that this amendment does not fall into that category, because commencement and expiry are two significantly different things. We only have to look at our birth certificates and death certificates to realise that they are radically different. The time of this might be somewhat closer but I think the order is not that it is substantially the same; it is significantly different.

The issue then is its proximity. It is not for me to make a judgment about whether it is so proximate to the commencement to make it substantially the same; that is for the Committee to decide. It has a starting date, and I accept that. It is now proposed to have an expiry date, and it is for the Committee to determine whether that is so close as to make the bill a nonsense. That is for the Committee to decide. I cannot see any grounds for the Committee ruling it out; it is, therefore, a matter for the Committee itself to decide. There are no procedural grounds that I can see for ruling out the amendment.

Hon GERRY BROWNLEE (Leader of the House) Link to this

I raise a point of order, Mr Chairperson. You have now left me somewhat confused and concerned. First, although I have seen my birth certificate, I most certainly have not seen my death certificate. Second, if anybody else has, I would appreciate knowing the hour and the moment.

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

I think the Leader of the House’s political death certificate could be written up about his inattention in this particular area. With a little bit of tolerance early in the morning from the Chairperson, I want to show people what came into my inbox from Japan overnight. A young Kiwi asked what is happening to New Zealand. He said that New Zealand sovereignty is finished—

CAROL BEAUMONT (Labour) Link to this

I congratulate my colleague the Hon Trevor Mallard on moving his amendment to insert new clause 2A into the Employment Relations (Film Production Work) Amendment Bill. I think it provides a very good opportunity for us to consider whether this bill is necessary. This amendment brings in an expiry provision for this legislation, which is currently suggested to be 8 November 2010. As others have said, that would be an interesting scenario, given that the legislation would not actually be effective by then. Of course, that would be the best possible outcome from the point of view of members on this side of the Chamber. This legislation is ill-thought-through. It is unnecessary, and I intend to explain why that is the case.

As a first suggestion, I would urge members opposite to support this amendment and recognise that this legislation is poor lawmaking. New Zealand is in the situation where many people are now questioning the nature of our democracy and sovereignty. If Warner Bros can determine domestic legislation—which labour legislation clearly is; it is about how we organise our workplaces, the arrangements that we say will exist, and the minimum standards that apply to people in our industries—then we are in deep trouble. Certainly, yesterday, when I was speaking in the House on this matter, I raised a number of questions. That was one of them. I said at that stage that I think questions will now start to be asked. People will want to know what this Government is doing and whether the changes, in terms of increasing the subsidies available and also in terms of changing our domestic labour law, are necessary.

Certainly the New Zealand Herald has taken up the challenge. I can put it on record that the New Zealand Herald has asked the questions. The heading of its editorial is: “Price to keep Hobbit in NZ is extortionate.” The New Zealand Herald goes on to say it does not have anything against our film industry—none of us do, despite what Government members are saying. But the editorial goes on to say: “In both instances,”—in terms of both granting the extra money and changing our domestic labour laws—“Warner Bros used fears that the films would be lost to this country to leverage a better deal for itself. There was no question of The Hobbit being shot elsewhere before an industrial boycott—lifted before the negotiations began—involving actors wanting to bargain collectively. Warner Bros simply seized the chance to apply pressure on unrelated issues. In both instances, it should have been resisted. The Prime Minister, however, always seemed relaxed about amending the law to provide ‘clarity’ in the film sector.”

This is the legislation that we are talking about here. In fact, the clarity that this bill is supposedly providing is unnecessary. As many of us have already indicated, including my learned colleague Charles Chauvel, there is no lack of clarity about the status of people who work in the film industry. People in the film industry, many of them, work as independent contractors now. There is settled law on this matter. The tests are quite clear. For well-paid technical people and well-paid actors, it actually suits their interests to be independent contractors. There are also people in the film industry who are less well paid, and who are clearly employees. The tests have been outlined very clearly, most recently by our Supreme Court in the 2005 Bryson case.

This legislation is unnecessary, and this is why I support the amendment of the Hon Trevor Mallard to let this legislation expire. If we want to talk about improving the conditions in the film industry, that is a different matter. But it is not clarity that is required. In fact, this legislation does not even deal with the matter that the dispute was about. The dispute was about independent contractors seeking to collectively organise to improve conditions in the film industry. It was not to negotiate a collective employment agreement, as some have incorrectly said, but to collectively look at their terms and conditions. This has been done previously in the Pink Book, and it is about time that it was improved. International actors’ organisations will tell us that the conditions in New Zealand are not up to par. There was a legitimate question there. We should let this legislation expire, and we should deal with the real issues.

SUE MORONEY (Labour) Link to this

We were once a proud nation, were we not? We were once a proud nation where on the international stage people admired New Zealand because we took an independent stance. When the Americans said that they wanted nuclear ships to come into this country, did we acquiesce to the Americans then? No, we took an independent stance. The commencement date in clause 2 of this legislation is the date of the day of shame for this country. It is the day that our independence as a once-proud nation finishes. [ Interruption] David Bennett does not care. He does not care that New Zealand has been seen to acquiesce, on the world stage, to an American corporation to change our domestic labour law, without any New Zealanders being able to come and make a submission to say what they think about this law change.

What do New Zealanders think about this law change? That Government will never know. That Government will never know, and it does not care; it does not want to find out, because it is rushing this legislation through. The commencement date in this clause is a day of shame for this country. It was brought about by John Key because he, in one fell swoop, is ruining the reputation of this country as having an independent voice and as being proud in saying on the international stage that New Zealand does have its own view. New Zealand does not buckle to international pressure, except for now. Now it is clear to the world that New Zealand does buckle to international pressure, and this is an issue of our sovereignty.

I am a Matamata girl. In fact, to be fair, I am a Walton girl, but what is 10 kilometres between friends? There is no one in this Chamber who is more determined than me to see The Hobbit shot in the locality where I was brought up. There is no one who is more proud of my town’s involvement in that film. But in that same location in Matamata there is another industry that would quite like $33 million at the drop of a hat—the racing industry—and it will come knocking on John Key’s door to ask where its $33 million is. Racing is another industry that is of incredible importance to Matamata, the Waikato, and the surrounding area. Members opposite know that they will have the tourism industry and the racing industry lining up next, and why should they not? There are easily as many jobs at risk in the racing industry, which is going down the tubes as we speak because of the Government’s approach of not having any economic development.

I speak kind of in support of Trevor Mallard’s amendment. He has proposed that this legislation expire on 8 November, but I would like to propose another date. I think that the first Tuesday in November would be a very fine day—Melbourne Cup day—for this legislation to expire. Why not have this legislation expire on Melbourne Cup day so that the racing industry could then have its turn? The racing industry could immediately knock on the door and say: “Mr Key, where is our $33 million? We’ve got lots of jobs. We’ve got an industry that is of vital importance to New Zealand. Why don’t we get the same treatment that has just been handed out on a plate to an American corporation?”.

Will that $33 million stay in New Zealand? Will it be in New Zealanders’ pockets? We know that $33 million is coming out of New Zealanders’ pockets—that it is coming out of taxpayers’ pockets—but where will it go? Will it go into the bottom line of Warner Bros? Where are the Warner Bros shareholders? Are they in New Zealand? Will any New Zealanders make any money out of the $33 million that is to be given away to Warner Bros? David Bennett says no. He says that no New Zealanders will make any money out of it. If that money went into the racing industry instead, then we could see New Zealanders benefit through local jobs that are not just for two films but will go on and on as sustainable employment into the future. I think the commencement date for this legislation is pretty interesting because it will be a day of shame for New Zealand.

METIRIA TUREI (Co-Leader—Green) Link to this

The Green Party will be supporting the amendment, new clause 2A, which inserts an expiry date for this legislation. I think that is very wise. There is no doubt that passing legislation like this, which will change the employment conditions for what could be hundreds, perhaps even thousands, of workers who may engage in the film-making and video game - making industry over the next decades requires a great deal more public concern and scrutiny than one day of investigation. Frankly, it is a constitutional outrage that this legislation is going through at all, and that the Government has involved itself in dirty commercial and political deals by selling out the people who are actually very vulnerable workers.

I am very pleased to see that an expiry date has been proposed. We will be supporting that because the country needs to scrutinise this issue. The Government is trying to push this legislation through under urgency because it is riding a political wave at the moment, but once that deal is unpicked the country will see just how dirty it is and just what the consequences will be.

It is interesting to note that on Back Benches the other night we were talking about this issue and the ACT Party said that it was very interested in seeing whether this kind of amendment, which would mean that employees could be classed as contractors and therefore lose a significant amount of their employment conditions, should be extended to all workers. That is what Hilary Calvert said. She would like to see the legislation potentially extended to all workers. That is the classic extremism of that party; we would not expect anything less. But there is that ideology sitting inside the Government at the moment that has the political power to interfere with workers’ conditions in a great hurry, and at the behest of others.

I am very concerned about the consequences of this legislation for vulnerable workers, and particularly for Māori workers. I would like to hear more about why the Māori Party has decided to support this legislation in particular. Let us just think about the kinds of young people whom we are talking about here—young people who want to get involved in the film industry. We can look at how well our Māori film makers have been doing. We can look at Boy, for example, which is excellent in that not only was it a New Zealand story but it involved young Māori New Zealanders and their own story, and the film led them to this idea that they could participate in the film industry just like anyone else. It was enormously empowering to see a film like that made about young Māori men in particular, and the opportunities that the film gave them, both in the industry and in the expression of their lives.

Because of the nature of the industry, those young people will generally have to operate as contractors. A young person getting into this business, particularly a young Māori person, will have to operate under that contractual arrangement. They are very vulnerable workers by their very nature, particularly young Māori men, who, we know, tend to be done over in terms of the education system, so they will not necessarily have all the skills or information that they need to negotiate as a contractor for the kinds of conditions that would make sure that they are OK. If they are then treated like employees by the company, and they do not realise that this is happening because they are not aware of their full employment rights, then this legislation means that they will be stripped of things like holiday pay and sick leave. They will be stripped of the capacity to be treated like employees, and when they are being treated like employees they will not have the bargaining power nor the knowledge and information that they need to negotiate their contracts to make sure those things are covered. It will be these young Māori workers, and particularly our Māori men, who will be suffering from this.

Young Māori employees involved in this industry at various levels will be the ones in the future—and not very many years away—who will be affected very badly by this. So why is the Māori Party allowing the Government that it is part of to pass legislation under urgency when no Māori lawyers, no Māori employment lawyers, no Māori communities, no Māori iwi or hapū, no Māori actors, no Māori—nobody—have had a chance to look at this legislation and say “This is how it will affect us.”? Young ones who are out there in the industry should be able to look at this legislation and say how it would affect them, how it would injure them, and maybe how it would benefit them. There is no scrutiny of the effect of this legislation on the workers who will be the most affected.

CHRIS HIPKINS (Labour—Rimutaka) Link to this

I am happy to take a brief call on the amendment to clause 2 to insert new clause 2A into the Employment Relations (Film Production Work) Amendment Bill, in which my colleague Trevor Mallard proposes to set an expiry day for this outrageous Warner Bros bill that would amend the Employment Relations Act. However, I will pick up on a comment made by Mr Mallard.

Mr Mallard suggested that 8 November would be an auspicious day on which this bill could expire—a day on which people could celebrate. He rejected the idea of 5 November, and so on. I do not think that 8 November is an appropriate day to celebrate. In fact, it is a very bad day for us in the Labour Party, because 2 years ago on 8 November the National Party won the election. That is certainly not a day that we want to celebrate on this side of the Chamber.

DAVID BENNETT (National—Hamilton East) Link to this

I move, That the question be now put.

GRANT ROBERTSON (Labour—Wellington Central) Link to this

It is a pleasure to take a call on new clause 2A. I share with my colleague Chris Hipkins some conflicted views about 8 November. It is obviously the date on which the National Government won the election, and, although democracy had its say then, I think that many New Zealanders who voted for the National Party are now regretting that. They are regretting that on 8 November—the day that we would have this bill expire—they voted for a Government that would come into office promising to do all kinds of things, but that would then go back on those promises. We have had the example of raising GST. But those New Zealanders who voted for the National Party on 8 November 2008 would not have thought that in doing so they would be contributing to giving away part of New Zealand sovereignty. They have contributed to putting forward a bill and supporting legislation in this Parliament that is apparently—although Gerry Brownlee is not sure—about acquiescing to the demands of a corporation in America in the form of Warner Bros, and about saying we will change our law and do whatever it takes, no matter what it is, to do what that corporation wants.

The expiry date of this legislation on 8 November, as proposed by Trevor Mallard, is clearly something that the editorial writer of the New Zealand Herald would support. But perhaps what is even more interesting than that to me are the letters to the editor that sit beside the editorial in this morning’s New Zealand Herald,from everyday New Zealanders, which look at what the National Government has done and ask what it is about. I will read the very end of the first letter: “The Government has made it clear that our sovereignty and democracy are there for the highest bidder. Either that, or this was just a ruse to rush through further attacks on the few remaining rights of working people.”

That is the question. That is the question that needs to be answered in this Chamber. On this side of the Chamber it sure looks as if there has been some rampant opportunism from the National Government—rampant opportunism from the National Government. Having created a crisis because of Gerry Brownlee’s inaction as Minister for Economic Development in not keeping the relationship with Warner Bros going, the National Government has had crisis management ensue. The Government has then broken out into opportunism and said: “Here’s another chance to attack workers in New Zealand. We’re doing it already with the 90-day bill, and we’re doing it already with restricting union access; here’s another opportunity.”

CHRIS TREMAIN (Senior Whip—National) Link to this

I move, That the question be now put.

CAROL BEAUMONT (Labour) Link to this

I rise again to speak on the amendment to create new clause 2A. I think it is a very good idea. Some might say that it is a little mickey mouse to have a provision that would see the Employment Relations (Film Production Work) Amendment Act expire so soon, but I think it is very appropriate given the nature of this legislation. The legislation itself reflects the mickey mouse approach of this Government to dealing with this dispute.

This dispute involved a particular set of circumstances around trying to improve conditions for the people who work in our film industry. It is not unreasonable for them to try to do that. We all wanted The Hobbit to be filmed here but, as others have said, the real issues were well signalled. Those issues were things like the need for greater support for the film industry. Sir Peter Jackson signalled those issues much earlier this year; Gerry Brownlee and others could have done something about them at the time. As for the actual dispute, the Minister of Labour was missing in action. Nothing was done to try to help work through the issues with the parties. Instead we end up with a mickey mouse solution, which includes this mickey mouse law that we are dealing with today. It is entirely appropriate that Labour has put up an amendment that would see this law expire very, very soon.

Labour members are not the only ones who see this legislation as somewhat mickey mouse. I draw the Committee’s attention to the cartoon in today’s New Zealand Herald, “Emmerson’s View”. It is very appropriate. It shows the Prime Minister going on about Warner Bros playing tough but saying that luckily he was cut from the same cloth. He looked them in the eye, stared them down, and then gave them exactly what they wanted. Interestingly, “Mr Mickey Mouse”, our Prime Minister, then says: “But they did say there’s a studio door in Burbank with my name on it …”. That is how one commentator sees our Prime Minister.

Emmerson is not alone in seeing this as a mickey mouse solution. There are very interesting letters to the editor in today’s New Zealand Herald. My colleague Grant Robertson noted one, and I will read out another: “So Warner Bros are now a consultant on our labour laws.” That is pretty mickey mouse, is it not? “Next, will McDonald’s be telling us to have all our police wear guns?”. People see that this is a mickey mouse solution. This Government is putting up mickey mouse legislation, and for that reason the Committee should support our amendment to have the Act expire on the close of 8 November 2010.

The legislation is mickey mouse because, first, it does not deal with the actual issue, which was around independent contractors working together, collectively, to try to improve their conditions. This legislation deals with a matter that is already sorted in law—that is, the status of independent contractors. I tell the Minister that there is settled law on the matter. What is wrong with the decision in the Bryson case? It is very clear. Have there been problems since 2005, when the decision was made on the Bryson case? Has the film industry suddenly experienced the problem of people becoming employees when they were independent contractors, or becoming independent contractors when they were employees? I think not, and that is not the nature of the dispute we have been dealing with recently. What problem is this legislation dealing with? This legislation is not dealing with the matter that needed to be dealt with—if there was one.

It is worrying to this side of the Committee that this mickey mouse legislation has potential to be used in a way that will disadvantage others.

CHRIS TREMAIN (Senior Whip—National) Link to this

I move, That the question be now put.

CAROL BEAUMONT (Labour) Link to this

Clause 3 of the Employment Relations (Film Production Work) Amendment Bill is very broad. It is quite short in what it says: “This Act amends the Employment Relations Act 2000.” This side of the Chamber has a great deal of respect for that Act. It was legislation brought in by the previous Government. It repealed the badly thought of Employment Contracts Act—an Act that did a lot of damage to our economy and to our workforce.

The Employment Relations Act, the principal Act, will be amended by this bill. I thought it was worth making a couple of contributions on the matter of amending the Act. The Government has shown it is very keen to amend the Act since it was elected. I wonder why that is. This Government is very backward-looking, in terms of employment relations. Its members yearn for the days—the good old days, from their perspective—of the Employment Contracts Act. They do not like working people, wage earners and salary earners, and working to achieve a better outcome for themselves and for their families. We are a low-wage economy and we are going backwards in that regard. The gap between wages in Australia and New Zealand is very high and will get worse because of the amendments that this Government is making to our employment relations system.

This Government sees things like being able to sack workers for no reason, without having to give them a reason, and with no right of redress as good law. The reality is that most Kiwis do not agree with that. Most Kiwis do not think it is fair that workers can be sacked without reason, without being told any reason, and without any right of redress. It is just unbelievable, but that is what the Government is doing. Of course it is extending it from small workplaces to large workplaces.

That is one of the amendments to the Employment Relations Act that this Government is pushing through right now, but of course there have been others. We will see the appalling situation where workers’ rights to meal breaks and rest breaks—statutory minimum rights—will be reduced. In fact the reality of that amendment to the Employment Relations Act will mean that many employees will be back to where they were before Labour changed the legislation. They will be back to the situation of being dependant on what they can agree with their employer, because there will be no statutory entitlement to both paid rest breaks and unpaid meal breaks. This is the backward-looking, dark age approach to employment relations.

Members on this side of the Chamber see employment relations quite differently. We do not see it as a contractual obligation and we do not see labour as a commodity. We see employment relations as being about how working people work in their job, in their workplace, alongside their co-workers, with their employer, where they can band together collectively to try to have both an independent voice and also improve their working conditions and wages. We see that as a good thing. This is where the Minister for Economic Development and the Minister of Labour are so negligent, because what we need is a complete transformation in the way that work is undertaken in New Zealand. If we want to lift our economic performance, then we should not be looking at these nasty cuts to minimum provisions and attacks on working people; we need to be looking at high-quality workplaces, where individuals are valued, where collectively they have voice, where their ideas are encouraged and sought, and where we look at transforming our workplaces into much more productive places.

There is a common advantage in lifting productivity, which leads to higher wages for the workers and higher productivity, and this means we achieve a better outcome from our workplaces and our industries. If we want the high-value economy that we say we want, if we want to close the wage gap between Australia and New Zealand, then that is where we should be focusing. The Minister of Labour and the Minister for Economic Development should be the two people who are advocating for that change. They should be saying that we should do things differently. They should not hark back to the bad old days of the Employment Contracts Act. As I said in an earlier contribution, this legislation, which is another amendment to the Employment Relations Act, is a mickey mouse amendment.

The CHAIRPERSON (Hon Rick Barker) Link to this

Before I call the next member, I say to members that they will be challenged on their debating skills in the Committee stage. I draw members’ attention to a very fine chairperson of the Committee, whom some will remember very fondly, the Hon Marian Hobbs. She said that members must “focus on the wording of the bill, on the intention in this bill, and not to focus on alternatives that are not part of this bill.” This is about the detail of the bill.

I say to members just before they get up—I see Mr Grant Robertson is very keen—that we are discussing clause 3, “Principal Act amended”. It simply states: “This Act amends the Employment Relations Act 2000.” That is it. Members need to focus on the detail of the bill. As I said, members will be challenged, but I am sure members are creative. I want to hear speeches that conform to the requirements that Marian Hobbs has placed on the Committee stage.

GRANT ROBERTSON (Labour—Wellington Central) Link to this

I will certainly endeavour to focus on the Employment Relations (Film Production Work) Amendment Bill, which, as you say, Mr Chairperson, amends the Employment Relations Act 2000. I think that in the debate at this point we can assess whether that is the appropriate Act to be amending, what that Act does, and whether this amendment is appropriate in terms of the Act.

I refer the Committee to the object of the Employment Relations Act 2000. In particular, the object of this Act, as stated in section 3(a) is, firstly, “to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—”. I will say that again for members. The object of the Employment Relations Act—mentioned in clause 3, which we are discussing here—is “to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—”. The question I ask is whether this amendment bill supports that object. I ask whether this bill, which says that no matter what happens in the employment relationship, and no matter how it might change over time, people are locked into the relationship they were in when they signed the contract, supports that object. I say to Ms Wagner that that is what this bill does.

This bill says, despite what might have been decided in 2005, that whatever happens after a contract is signed, people are locked into the relationship they were in when they signed the contract. When we look at the Bryson decision, we see that the main element to arise from it was that the nature of the employment relationship depends not only on what the parties intend and agree but also on what they do and how they conduct themselves. This amendment bill says that the second part of that, what parties do and how they conduct themselves, is no longer a relevant consideration. The Employment Relations Act is now limited to such a point that there is now no ability to take into account how the relationship evolves over time. There is also now no ability to go to court to even test whether the relationship has changed in such a way that it is no longer appropriate to consider someone to be an employee or a contractor.

We are looking at clause 3 in this bill that amends the Employment Relations Act, and it is important to look at the objects of the Employment Relations Act and how this bill supports or does not support those objects. In my opinion, the kind of change that the Government is proposing here is against the idea of good faith. It is saying that no matter what actually happens in an employment relationship, if good faith is not progressed and if things change in the employment relationship, the relationship is still locked down to how it was when the contract was signed on day one. Mr Bryson’s case shows us that employment relationships can change. Someone can be taken on as a contractor, but then, in effect, become an employee by the nature of ongoing work within the same organisation, and by doing a similar piece of work. Eventually, both parties might consider that person to be an employee, but under this bill they cannot do that. They cannot take the relationship to court to test it and they cannot change it; it is locked down. As we look at clause 3 of this bill, which amends the Employment Relations Act, my view is that the objects of the Act are no longer being fulfilled by this amendment.

Let us continue to the second part of the object of the Employment Relations Act. Section 3(a)(i) states that the object of this Act is to build productive employment relationships “by recognising that employment relationships must be built not only on the implied mutual obligations of trust and confidence, but also on a legislative requirement for good faith behaviour;”. Trust, confidence, and good faith are key objects of the Employment Relations Act, which is mentioned here in clause 3. They are being broken by this amendment. How can trust and confidence be there if it is actually impossible for somebody to relook at the nature of his or her employment relationship? How can it possibly improve trust and confidence, which are the objects of the Employment Relations Act, if someone can no longer go to court to assess whether that relationship has changed?

The law in this area is settled. There is no need for so-called clarity. Movies have continued to be made in New Zealand since 2005. Major, big-budget production films have been operating perfectly well in settled law. There is no need to undo the Employment Relations Act. This bill amends the Employment Relations Act. The Act in itself has in its object clear things—

The CHAIRPERSON (Eric Roy) Link to this

I have been listening to this debate on television before I came here, and I am mindful of the ruling that the Chair whom I relieved, the Hon Rick Barker, made in quoting Marian Hobbs in Speaker’s ruling 10/5. This is not a debate about the objects, as the member has just been relaying; it is specifically about clause 3, which states that this bill amends the Employment Relations Act. It is about amending, and we shall keep a tighter rein on subject material in relation to this.

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

I raise a point of order, Mr Chairperson. I am sorry; I was out of the Chamber. I am not sure whether we are allowed to refer to watching the debate on television; I think that is for people outside. I will not refer to watching on television. The question I have is whether it is in order, seeing as we are proposing amendments to the Employment Relations Act—because it goes to whether the Opposition might support this clause; clearly, we will not support the bill—for other amendments that are obviously related and within the general scope of the bill to be added. As the train is going through, can additional carriages be added to it? I think we can accept there cannot be general, totally unrelated amendments to the Employment Relations Act, but how far the Act is opened up by this clause affects whether, in fact, we support it. Some of us would like to make some other changes, as well, and we might well be supportive if that was the case.

SUE MORONEY (Labour) Link to this

I thank the Chair for that clarification. I want to speak on clause 3, which amends the principal Act and names the principal Act to be amended as the Employment Relations Act 2000. I accept that the previous contribution from my colleague Grant Robertson was asking a very important question about whether that is the appropriate Act—

SUE KEDGLEY (Green) Link to this

I would like to speak to clause 3 of the Employment Relations (Film Production Work) Amendment Bill, which is really asking whether this Parliament will amend the Employment Relations Act so that Warner Bros will be happy. I mention in passing, and to put some context here, that there is a great exhibition at Te Papa at the moment about the 20th century. There are some fantastic clips of Prime Ministers of New Zealand, like David Lange and Norman Kirk, standing up in the world, proclaiming our independence against America, standing up for democracy, and standing against injustice. I even wrote down what Norman Kirk said. He said we must be prepared to make our voice heard. He said: “We are a small nation but we will not abjectly surrender to injustice.”

But now, in the 21st century, we are rewriting the script. Now we will abjectly surrender to any multinational corporation. We will amend the Employment Relations Act or any other Act to make a multinational corporation happy. We have now entered a new era of grovelling—grovelling our way in the world. It is a shame that the chief groveller is not here to defend his actions. Many people are asking where it will all end.

Hon STEVE CHADWICK (Labour) Link to this

I will take a short call on clause 3 of the Employment Relations (Film Production Work) Amendment Bill, which states “This Act amends the Employment Relations Act. Fundamentally, that takes us back to why we are here in Committee, in urgency, debating amendments to industrial legislation that are not required. They were never asked for by the actors and those engaged in the industry, or by the producers. I go back to what Gerry Brownlee said in May 2009, when he was fronting a New Zealand film networking function. He stated: “Our competitors continue to work to attract productions to their countries. So while we don’t want to engage in a ‘race to the bottom’ within higher and higher incentives the next step is to cultivate a regulatory environment that makes it easy for filmmakers to come to New Zealand, and film in our locations, use our facilities, and hire our workers, and engage our talent pool.”

Labour would have agreed with that statement in 2009, but never since 2009 have workers in the film industry asked for legislative change to give them clarity or to give producers clarity about hiring staff. They have never asked for that.

MOANA MACKEY (Labour) Link to this

I am happy to take a call on clause 3. It states that the bill amends the Employment Relations Act 2000, which is domestic legislation. The Labour Party has a proud history of fighting for independent foreign policy. I think today is a sad day in the Chamber, when we now have to fight for independent domestic policy. This is a huge shift. We are amending the Employment Relations Act because a foreign multinational company has pressured the Government to do so. We on this side of the Chamber do not believe that step was necessary and we do not believe it should have been taken.

I had an email overnight from a colleague in an overseas Parliament, who said to me that this cannot be true. He said that someone told him New Zealand was amending its Employment Relations Act 2000 because a foreign company had asked us to and had put pressure on us, and he said that that would not happen in a modern, developed country like New Zealand. I had to go back to him—

Dr CAM CALDER (National) Link to this

I move, That the question be now put.

Hon KATE WILKINSON (Minister of Labour) Link to this

I will make a couple of comments, and I will draw the Committee’s attention to a couple of minor tidying-up amendments in my name. The first amendment clarifies that the employment agreement is to be in writing. I thank the honourable member Mr Chauvel for pointing that out. Although it is not really necessary, I am happy to move that amendment to make it crystal clear and to appease his concerns that employment agreements have to be in writing. The second amendment is technical and minor. It provides, for example, for producers and directors who may also be involved in promotional and advertising work.

I have just a couple of comments on clause 4, because this is the substance of the bill. I will make a couple of comments on some of the questions that have been proposed in previous debates. There has been a suggestion that Warner Bros was consulted on labour laws. To clarify, if there is a law that needs clarity, if there is a law that needs certainty, or if there is a law that needs fixing, then I do not really mind who talks to me about it. I do not think that is a loss of sovereignty; I think that is called listening. But what I do think is a threat to our sovereignty is international foreign unions attempting to dictate to us what happens in our country. At the end of the day, New Zealanders do not want international unions jeopardising our jobs and they do not want international foreign unions threatening our economy.

This bill, and clause 4 in particular, is very simple. If someone involved in the film industry wants to be an independent contractor, then he or she can be. If that person wants to be an employee, then he or she can be. It is as straightforward as that.

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

That was a pathetic little contribution. It has been the only contribution to date from the Minister in the chair, Kate Wilkinson, and she did not even apologise for poor drafting. She did not even apologise for the mess of a bill that she has brought to the Committee stage. She already has two amendments, and it is my bet that she will be back in the House to further amend this legislation before the end of the year. It is my bet that she will be back in the House with further amendments to this legislation before the end of the year to correct the other three errors that we may or may not tell her about at some stage.

Hon Dr NICK SMITH (Minister for the Environment) Link to this

The fact that that was the very first speech on the substance of the Employment Relations (Film Production Work) Amendment Bill, and that it amounted to 10 minutes of personal denigration, speaks volumes about the differences between members on this side of the Chamber, who are advocating for the national interest for our country, and an Opposition that is more interested in playing personality politics and looking after its Aussie union mates than in looking after what is important for our country.

Let us go to the core of what this clause is about. It is a very simple issue: is the law clear about whether people working in the film industry are contractors or employees? I think that this Committee should agree that having certainty about that is in everybody’s interests. Let us see what actually happened in the courts. The Employment Relations Authority decided that the person in question was a contractor. When the same case went to the Employment Court, the court said that, no, that person was an employee. Then when the matter went to the Court of Appeal there was a different decision again—a reinforcement that the person was a contractor—and then the Supreme Court decided that the person was an employee. So there we had four judicial bodies coming to two different conclusions. That, in my view, makes it absolutely plain to this Parliament that the law is not clear, and that the right thing to do in the national interest is that we make the law clear with this bill.

Members opposite have made all sorts of extravagant claims about Warner Bros and the like. But we know that really pulling the strings here are the Aussie unions. It is all very well for members opposite to stand up and make extravagant claims, but we are acting in the national interest. I challenge members opposite to tell me who agrees with the description of Sir Peter Jackson—one of the great New Zealanders, a man who has done so much for the film industry—as a spoilt brat, a spoilt brat, by the head of the Council of Trade Unions, Helen Kelly. I ask which members opposite disagree with Helen Kelly. Not one! That speaks volumes about the differences in culture and values between this Government and members on the other side of the Chamber. Successful New Zealanders—those who are creating jobs, wealth, and opportunities for young people—are despised by people opposite, and those members write off successful New Zealanders as spoilt brats. We on this side of the Chamber are proud to stand behind Sir Peter Jackson, his success, the jobs that he will create, and the way in which he has successfully promoted our country.

We have had arguments from members opposite that there should be absolutely no special treatment when defining contractors in employment law. That is what members opposite have argued. Well, that is pretty interesting, because in the very employment law that they passed, they said that when it came to sharemilkers they would have a specific clause. When it came to real estate agents, Labour said that, no, it would have a specific clause. My challenge to members opposite is to ask where their principles are. If there really are absolutes, and if there should not be any definition that differentiates between different industries, I ask why every member of Labour voted for an Employment Relations Act that specifically differentiates in working through the definitions of who is a contractor and who is an employee in relation to sharemilkers, and an Act that also covers those in the real estate industry.

I note another pathetic argument—and this was one that I really found entertaining. Damien O’Connor got to his feet and said it was absolutely disgraceful that when Warner Bros executives came to New Zealand, they were transported by the Government’s cars: “Was that not awful? Did that not show us up?”. In the next speech Grant Robertson said that the Government’s real fault was that we had not had a $100,000 booze-up function in Los Angeles to look after the executives. I would love for those members opposite to please explain the logic about why one of those actions is somehow immoral and one is right.

The last point that I make is about what this issue goes to the core of, in terms of some of the arguments about sovereignty. The real sovereignty argument here is whether we are going to allow New Zealanders’ jobs and opportunities to be held to ransom by an Aussie union. Just as the editorial in the Dominion Post says this morning, this Government would not be doing anything in this space if it were not for the botched—the botched—union attempts to blackmail the production of The Hobbit in New Zealand.

CAROL BEAUMONT (Labour) Link to this

I will focus quite closely on clause 4, members will be pleased to know, to look at what this clause is about and basically at what it says. This legislation is supposedly about clarification, which is what the previous speaker, Dr Nick Smith, talked about. This clause is the substantive part of the Employment Relations (Film Production Work) Amendment Bill.

The first question is whether there is a need to clarify. Although it was very interesting for the Hon Dr Nick Smith to go through the history on the matter, the reality is that since 2005, with the Supreme Court decision in the Bryson case, we have had settled law on this matter. There has not been a raft of other cases on the matter. There have not been a whole lot of people flip-flopping their status between independent contractor and employee, which people might have been concerned about. That might have been an issue of uncertainty, but it would appear that that has not been the case. Yesterday my colleague Charles Chauvel went quite carefully through the provisions of the Bryson case. He should know, as he was one of the lawyers involved in the case. The court went through the matter and looked at a very clear set of tests to determine the real nature of the relationship.

Here we have had a provision put forward in response to a dispute and a threat that The Hobbit would not be made in New Zealand, but the actual issue in dispute was not the question of whether somebody was an independent contractor or an employee, or any uncertainty over that matter. What the Hon Dr Nick Smith seems to have so much difficulty with is the idea that workers might try to improve their situation. In this case, a group of independent contractors—actors and technicians—wanted to try to improve industry standards as independent contractors. They were not seeking to negotiate a collective employment agreement as employees; they were seeking to collectively negotiate over industry standards. It is something they are perfectly entitled to do—and is something that has previously been done, with the Pink Book—and an agreement was reached that that was exactly what would happen.

When this dispute was resolved, some time ago now, and all of the parties were notified, one party failed to recognise that there was a resolution. The party that failed to recognise that any questions around banning anything had been lifted, and the party that was actually deceptive in all of this, was Warner Bros. It suited the Government for that to be the case, so that it could keep up the hype on all of this. The reality was that the actual issue was resolved.

This is a different issue. I ask why this bill is looking at the meaning of the word “employee”. Clause 4 raises the issue of the meaning of “employee” and talks about it in relation to film production. Clause 4 talks about who is not covered by the term “employee”, in a new section 6(1)(d) to be inserted in the Employment Relations Act. It states: “(i) 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: [or] (ii) a person engaged in film production work in any other capacity.” That covers the rest of the people in film production. It goes on to talk about pre-production work and post-production work. So this clause potentially includes everybody: the cleaner, the person answering the phones, and all of the range of people involved in film production work, including the production of film or video games.

The CHAIRPERSON (Eric Roy) Link to this

Before the next member speaks, I draw the Committee’s attention to a matter that occurred while Nick Smith was speaking; I did not want to interrupt him. The Standing Orders and Speaker’s rulings are quite clear on visual aids. During the speech of a member of the Government, visual aids were displayed from the other side of the Chamber. They are to be displayed only when members on that side of the Chamber are speaking. We will not have a repeat of that.

Hon TAU HENARE (National) Link to this

Thank you for that assistance, Mr Chairperson. In this debate I am reminded of the old communist days, when the Iron Curtain was shut down on most of Europe and a few other nations that most of those members have visited in their prime. The most interesting thing is that the blacklist, the boycott that was promulgated by the unions, the Council of Trade Unions—