Much of the media commentary in the past few days around the Hobbit stoush has been has been about the cheek of an Australian Union (the MEAA) daring to take on our very own Lord (Sir Peter Jackson) over the pay and conditions of NZ performers on the Hobbit set.
We’ve even seen the extraordinary situation where a Minister of the Crown and Attorney General has (mis)used his position to seek and publish advice from Crown Law to take sides in what is essentially an industrial dispute.
But underlying this is a much deeper issue. New Zealand’s competition laws impose huge restrictions on the rights of contract workers to collectively organise and bargain – no matter how dependent and how vulnerable.
I’m not qualified to comment on whether NZ performers in the Hobbit are being fairly paid or not. Nor do I pretend to understand the complexities of “residuals”” and other industry norms. But what I understand very well is the problem we have in New Zealand of dependent and independent contracting, and how this is often used to deny more vulnerable workers basic fairness.
I did a lot of work on this issue a couple of years ago when my members’ bill, Minimum Wage & Remuneration Bill was being debated through parliament (and was eventually defeated under the National/Act government).
At the time, NZ Actors Equity supported the bill saying :
“We have many NZ productions which we are all justly proud of, but rates of pay in some productions are nothing to be proud of. The poor pay & conditions of many performers is not commonly known, who, because they are classed as dependent or independent contractors, are expected to work for a whole lot less than workers who are employees.”
NZ law dictates that a worker who is not defined as an “employee” has no rights – even if they are vulnerable, dependent and poorly paid.
So, who can be surprised if from time to time, a group of workers, even if they happen to be performers and supposedly above needing to earn a decent living, use what leverage they can gather to get their boss to talk to them.
Then, not to be too pointed, why don’t you STFU, rather than smear Jackson who has done more than you ever will for this country.
@gitmo go back to kiwiblog
@dylan – Yes quite right we must remember unions good everyone else bad.
@gitmo no what is bad is people who can’t bring anything to an argument except blunt insults like ‘STFU’ and have no logic to back it up. What Jackson and DF have done for this country is incomparable because Jackson has done things in the entertainment industry and DF has done things to do with politics so you can’t really say who has ‘done more’ for the country. Also DF’s comments weren’t necasserily aimed at Jackson in the first place. They were at the laws surrounding actors.
Who would have thought, Labour supporting Unions?
Unions = Labour.
Labour = Unions.
There’s one for the records.
If as an actor you dont like the contract/conditions offered then dont take the work, quite simple really
Now what will the unions do if the productions (and all the money with) go overseas…shrug their shoulders and go “at least we’re fighting the good fight”
Way to cut your own throats
“Also DF’s comments weren’t necasserily aimed at Jackson in the first place. They were at the laws surrounding actors.”
I suggest you read the first bile filled paragraph again.
@gitmo well she was saying that the australian unions were attacking Jackson rather than attacking him herself then for a majority of the post went on to say her views on NZ employment laws. Do you think the fact that actors should get fair pay/conditions is bile too?
@Doug What are you trying to say that Labour is boring/predictable? National has recently damaged unions which is also predictable…
@Chris73 if overseas pay/conditions for actors is also fair then theres no need to worry is there. If they aren’t then the Govt. should do more to protect actors pay/conditions and filmmakers from foreign competition than having these kinds of laws. Somethng I doubt NACT would ever look into.
The comments above miss the point. That is that the Commerce Act treats two independent contractors negotiating with a dominant employer as competitors and regulates how they compete in the same way as competition between corporate such as Vodofone and Telecom are regulated. That makes no sense and prevents working people protecting their rights. The post says nothing about Peter Jackson but raises a legitimate question about how independant contractors are prevented in law from working together. Fair point. Worth discussion.
I also think it’s worth saying that a government minister shouldn’t be intervening and taking sides in an industrial dispute.
@Simon M and Dylan – thanks – you get what I am on about.
How has the AG misused his position? I completely miss the point as to any misuse, and how exactly he took sides (other than publicising Crown Law advice which appeared to support one side more than the other, but is ostensibly neutral statement of the law).
@Simon yea I should have said contract laws instead of ‘employment’ laws
I just got a comment in moderation and it has no slang/swear and no negative implications of any kind…
@ Chris 73 so workers don’t have any rights they just take what’s on offer then, or the nice employer will threaten the actors with we will take the film else where.
If I treated my employees the way Jackson treats his I soon would be out of business. Jackson is doing what every exploiter does makes millions while the workers get the crumbs.
Its Jackson who has been media whoring and making all the threats, he maybe a great Director, but MR Nice guy he is not. As an employer I think his handling of this situation has been quite outrageous
Wake up Chris and before you comment any further try finding out what the issues are aye. Without the actors he wont have any thing to direct
@Craig Chris73 was pointing out the fact that the NZ industry might move overseas if they were made to pay proper wages. The Govt. sees our movie industry as a valuble/precious thing. So while we say we should increase wages/conditions for actors we also need to think about what other ways we can protect the movie industry from foreign competition. Which is consistent with the problem I have with Labour, they have good goals but they need to be equally insistent/clear on their methods.
Theo,Chris Finlayson provided a legal interpretation, which is the one being used by The Hobbit employers. There are other legal views. I have heard several people in the media (eg on National Radio)say that the actors on The Hobbitt (and other productions) could be employed on fixed term contracts, rather than as independent contractors.
Furthermore, some say that the reasons the employers use the independent contractor category, is so that they can avoid negotiating with a union. It’s a way of undermining unions – something that seems quite high on NACT’s agenda lately. So it was a very biased and politicised intervention by Chris Finlayson.
Finlayson is undoubtedly a smart guy. One of the best in the National cabinet in fact. Shame he went with his interpretation and his actions.
So is your position that the Attorney General cannot give a legal opinion?
Maybe we should just make him redundant then.
The MEAA is not an NZ Union, it was removed from the Registrar of Unions a few weeks ago because they didn’t keep their registration up to date…
So it is illegal under NZ law for Jackson to negotiate a collective contract with them…
I was on the committee of a PS union a few years ago, registration is so simple that if the MEAA is so incompetent that they cannot keep that current, I wouldn’t want them representing my interests…
I think the Union telling actors including non-unionised actors that if they work on this film they’ll be blacklisted from ever working again, gives a hint as to the motovations of the MEAA…
As for Finlayson seeking advice, I think the importance of the film industry to NZ makes that action prudent, Labour spent millions upon millions subsidising the industry, we now might as well get our money’s worth, i.e. $204,000,000 and a few thousand jobs for a couple of years…
Darien: Why did Labour pass a law which banned collective bargining contracts, except with officially registered unions?
Just a side note @Doug
“Unions = Labour.
Labour = Unions.”
No since 1984… only a few outliers in labour these days that actually support unions! Most of labour is indifferent towards them and there are even some in labour who want to weaken/get rid of them.
@gitmo: Darien wasn’t trying to prejudge the outcome. And what does it mean when even seasoned film industry figures like Gaylene Preston find it hard to draw a conclusion?
In just a few days the issue has been debated to death, so there’s not much I can further add. Mixed up in the whole issue is runaway production politics in Hollywood, the SAG, the DGA (which PJ is a member of), and UK Actors Equity among others. The MEAA if I recall correctly kicked up a stink about NZ shows being classified as Aussie local content under CER.
There are a several issues here.
1. Whether a union has the right to act for independent contractors. If the actors are independent contractors then the union will have to bugger off, otherwise they’re breaching the Commerce Act.
2. Whether the MEAA has the right to represent New Zealand workers. The answer of that is no, because they’re not a registered union.
3. Whether the true relationship of the actors is that of an independent contractor or an employment relationship. This is very murky and there are a whole lot of factors that a court would have to take into account. The Employment Court has ruled against Three Foot Six in the past over a sham independent contractor relationship with a modelling technician. A Court would look at a whole lot of issues including the terms and conditions of the agreement, the intention of the parties, the operation of the relationship in practice, industry practice, and the real nature of the relationship.
There are some features depending on the job and the circumstances which would definitely point to an employment relationship in some cases and some respects (eg, an actor taking specific direction from the director doesn’t have any discretion or control over how they perform their work), but would definitely point to an independent contractor relationship in other respects (an actor receiving $5,000 a week for their work is operating a business for profit with enough margins for down time).
The MEAA is a sham and has ulterior motives to shift productions offshore. What New Zealand film workers need is an organisation that is much smarter about how they approach this. Initially getting a bunch of actors on existing independent contractor agreements declared as employees by the ERA or Employment Court (actors on a long running South Pacific production) would be a good target.
At the moment the MEAA is too incompetent for anybody to try and defend them including you Darien.
Jennifer Ward-Lealand (and Robyn Malcolm), on Campbell Live last night, said it was the NZ actor’s union (which is affiliated with MEA) that wanted to talk with Jackson. And she said it was the international alliance of actors’ unions that was supporting them. This is because NZ actors’ lack of a basic employment agreement are totally out of step with the agreements that exist for actors in other countries. I think Jackson’s attack on the MEA, publicly in the media, is a bit of an attempt at manipulation of the public, and distraction from his lack of willingness to talk to the NZ Actors’ Union.
Quoting from the Herald, I know this doesn’t make it true, but it suggests that Actor’s Equity have accepted the AG’s (And Crown Law’s) opinion.
“The New Zealand Actor’s Equity, who operate as an autonomous part of the MEAA, have since acknowledged the Commerce Act prevents a union-negotiated agreement with performers who are independent contractors, following advice from the Attorney General Christopher Finlayson.”
Personally I would generally hope that the AG and Crown law was able to provide advice like this, especially in matters that have as much potential to impact on an NZ film industry such as this. Actor’s Equity was free to reject that advice and pay to get their own, but short of a (costly/time consuming) Court ruling, it seems like a good way to clarify the situation for all parties and try to resolve that particular problem so a pro-active solution can be reached.
I say good on the AG for taking this initiative
No Theo it is blatant politicking by National they are attempting to shape public opinion on the matter as others have pointed out the use of contracting is an attempt to not have employees.
It effectively keeps these actors as individuals and therefore vulnerable.
This situation is a private matter and tax payers money should not be being used in this manner. But go ahead National keep attacking the actors.
The Standard has a view on the tactics being used here :
http://thestandard.org.nz/some-advice-for-actors-equity/
I hope we can have middle earth here again
It’s so good for the country 
Ho, ho, ho… The Standard and Kiwiblog, my first choices for reasoned debate…
@ Jeremy M Harris – well obviously you rely on TVNZ and the Herald for your information. Sad
But at least today the NZ Herald is putting another point of view from Ian Mune :
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10677637
The same TVNZ that it’s so vital remains in Government hands so we get fair and balanced news and current affairs..?
It may still remain in government hands but it stopped being fair and balanced when it dropped the public service aspect and went for profit following the US/Fox model.
And some heated but still reasoned discussion on Public Address System.
PA System: Hobbit Wars
What is the point of looking at the law surrounding contract negotiations if it results in no jobs to contract for?
Great News – the unions MEAA and CTU will be stoked.
The Hobbit is now moving off shore.
Congrats – and a big thank you to all the people and businesses who will lose their jobs and business from this.
For all the talk about high tech industry etc – the unions have managed to kill off and entire industry that was world class.
Well this has always been a problem for the Unions. If the workers are being treated badly they can strike but then non-union workers take their jobs, in this case overseas ones.
This is a classic example of how Unions are useless unless they are universal. All the blame should not be put on the workers, if they were being treated badly they should have a right to bargain over it. The film makers should have some responsobility as they are the ones making these decisions.
The Government has a responsobility to intervene IMO because of the national interest involved.
Just for the record – I dont believe that there was any accusations that actors were been treated badly.
and its not just the hobbit that is going:
“”MEAA’s representative, Simon Whipp, admitted in a recent interview with the Hollywood Reporter, that it was his intention to use The Hobbit as a way to ‘unionise other productions’ in the New Zealand film industry – presumably whether we want it or not.”
Its going to be all movies moving forward.
Still – I guess they can all get union work on Shortland Street.