Sovereignty, or the right to independent nationhood, is something which must be jealously guarded, and something New Zealand took particular pride in more than a quarter of a century ago when the then Prime Minister David Lange took a firm stance against the United States Government to declare New Zealand nuclear free.
Last month, the National-led government passed under urgency legislation to ensure that workers engaged as contractors in the New Zealand film industry could not take action as employees against producers should they be treated unfairly. The legislation was a cynical assault both on New Zealand’s sovereignty and on the rights of New Zealand workers to organise collectively.
But first, let us get a few facts straight. The industrial differences between Actors Equity and The Hobbit producers were resolved on October 14 and any suggestion of boycotts well and truly lifted by October 17. With the help of the NZCTU and the government, the parties agreed that the ‘Pink Book’ which contains standard terms and conditions for actors would apply to films which start production before March 31, 2011 (including The Hobbit films). These would be reviewed for subsequent films and actors would remain as independent contractors, just as they have always been.
This should have been an end to the matter, but within a week the nation was in something of a furore − Warners allegedly had the jitters over industrial stability and, although initially denied, a reinvigorated interest in striking a more lucrative financial deal to keep the filming of The Hobbit in New Zealand. It was not unions who kept the issue bubbling but particular industry executives and the government.
Prime Minister John Key responded by pronouncing a need to change employment legislation to keep The Hobbit production here and, in particular, to remove what he described as ambiguity around the definition of a contractor.
A risky precedent
This is, we believe, the first time a New Zealand government has legislated to limit employment rights to cater to the whims of an overseas corporation wanting to operate here and it creates a dangerous precedent on two fronts. It limits employment rights to attract or cater to overseas investment and opens the way for other multinational employers to request lower employment costs.
Would the government set aside minimum wages in the manufacturing sector, for instance, so that New Zealand could compete against Mexican or South Asian labour costs? Or introduce labour free zones to allow corporates to import workers from poor countries, such as Bangladesh, and pay them according to the labour standards in their home countries?
Secondly, what could happen if an overseas corporation wants to set up in New Zealand, but does not like other legislation such as the Resource Management Act? It doesn’t take too much imagination to see how an aluminium producer, a mining company or a petroleum giant could operate much more profitably if environmental concerns were not paramount. And one has only to look at the record of oil companies in Africa to see them at their exploitative worst.
The other question is whether a change in legislation was necessary, and the short answer is ‘no’. There is no ambiguity, as Mr Key claims − the Employment Relations Act clearly spells out the difference between an independent contractor and an employee. The Bryson case involving a model maker on the Lord of the Rings who was engaged as a contractor but held by the courts to be an employee was settled five years ago, before King Kong and Avatar were made and in the pre-production so far of The Hobbit.
Under the October 2010 law change anyone employed in film production − including the tea attendant and the cleaner − is a contractor unless otherwise agreed. If they are a genuinely independent contractor, that is ok, but what if this is a ruse to avoid employment obligations such as sick leave, holiday pay, or the requirement to pay the minimum wage? Film industry workers have just lost the right to challenge such a ploy.
More industrial laws
Parliament passed this law without public discussion at a time when it is also considering measures to remove workers’ rights to challenge unfair dismissal in their first 90 days of employment, to have their union representatives visit them at work, and to enable employers to require sick notes from workers after only one day’s sick leave.
It is no coincidence.
Peter Conway is secretary of the NZ Council of Trade Unions.