29 October 2010

Bobbiting the Employment Relations Act

Here is how the The Employment Relations (Film Production Work) Amendment Bill (or the "Hobbit Bill) works.

Here is Section 6 of the Employment Relations Act 2000 with the words added by the Hobbit Act in italics.

Employment Relations Act 2000 No 24 Section 6 Meaning of employee

* (1) In this Act, unless the context otherwise requires, employee—
(a) means any person of any age employed by an employer to do any work for hire or reward under a contract of service; and
(b) includes— (i) a homeworker; or + (ii) a person intending to work; but o (c) excludes a volunteer who— (i) does not expect to be rewarded for work to be performed as a volunteer; and (ii) receives no reward for work performed as a volunteer.

(d) excludes, in relation to a film production, any of the following persons:
(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:
(ii) a person engaged in film production work in any other capacity.
(1A) However, subsection (1)(d) does not apply if the person is a party to, or covered by, an employment agreement that provides that the person is an employee.

(2) In deciding for the purposes of subsection (1)(a) whether a person is employed by another person under a contract of service, the court or the Authority (as the case may be) must determine the real nature of the relationship between them.
(3) For the purposes of subsection (2), the court or the Authority—
(a) must consider all relevant matters, including any matters that indicate the intention of the persons; and
(b) is not to treat as a determining matter any statement by the persons that describes the nature of their relationship.
(4) Subsections (2) and (3) do not limit or affect the Real Estate Agents Act 2008 or the Sharemilking Agreements Act 1937.
(5) The court may, on the application of a union, a Labour Inspector, or 1 or more other persons, by order declare whether the person or persons named in the application are— (a) employees under this Act; or (b) employees or workers within the meaning of any of the Acts specified in section 223(1).
(6) The court must not make an order under subsection (5) in relation to a person unless— (a) the person— (i) is the applicant; or (ii) has consented in writing to another person applying for the order; and
(b) the other person who is alleged to be the employer of the person is a party to the application or has an opportunity to be heard on the application.

(7) In this section, “film” means a cinematograph film, a video recording, and any other material record of visual moving images that is capable of being used for the subsequent display of those images; and includes any part of any film, and any copy or part of a copy of the whole or any part of a film
“film production” means the production of a film or video game
“film production work” (a) means the following work performed, or services provided, in relation to a film production:
(i) work performed, or services provided, by an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer (whether as an individual or not):
(ii) pre-production work or services (whether on the set or off the set):
(iii) production work or services (whether on the set or off the set):
(iv) post-production work or services (whether on the set or off the set):
(v) promotional or advertising work or services (whether on the set or off the set) by a person referred to in subparagraph (i); but
(b) excludes work performed, or services provided, in respect of the production of any programme intended initially for broadcast on television
“video game” means any video recording that is designed for use wholly or principally as a game
“video recording” means any disc, magnetic tape, or solid state recording device containing information by the use of which 1 or more series of visual images may be produced electronically and shown as a moving picture.

The Bobbit the Hobbit Bill

As noted, the "duck test" for telling an employee from a contractor is Section 6 of the Employment Relations Act 2000 as applied in Bryson vs Three Foot Six Ltd.

The Employment Relations (Film Production Work) Amendment Bill (or the "Hobbit Bill requested by Sir Peter Jackson and Warner Bros") is now the law. It stops the "duck test" being applied in the NZ film production industry.

The facts of your employment, as in Bryson's case, are no longer relevant. In the NZ film production industry, you are a contractor (with no security, no sick pay, no ACC, no holiday pay) unless you have a written contract of employment stating that you are an employee. As from today, on any Jackson/Weta film production, being an employee is at the whim of Sirs Peter and Richard.

The Three Foot Six practices of issuing detailed contracts of employment that use the word "contractor" instead of "employee", and issuing pay slips marked "invoice", will be conclusive proof of the fact that you have no rights as an employee.

Facts of Bryson vs Three Foot Six Ltd

Have a read of the Bryson vs Three Foot Six Supreme Court case, also a PDF.
Under Section 6 of the Employment Relations Act 2000, someone can ask the courts to find that he/she is in fact an employee, despite the wishes of the film production company/"employer". In other words, this is a "duck test".

The Bryson facts were;
  • Bryson worked for Weta workshops as a miniature model maker for several months on regular hours and on an hourly rate ($18 an hour and from 8:00am to 5:30pm)

  • there was no written contract or letter of appointment

  • he transferred to Three Foot Six, the LOTR film production company, on a verbal basis

  • he got 3 weeks specific training for the new role

  • his partner had a baby, so he asked and they agreed he could stay on 8 to 5:30 instead of moving to 7:30am to 6pm which was normal for 3F6

  • after several more months, everyone on LOTR work is issued with a 'crew memo' which read exactly like an employment contract except it states "YOU ARE A CONTRACTOR"

  • Bryson is issued pay slips from 3F6 that are titled "Invoice"

  • Filming of LOTR finishes, 3F6 tells Bryson his services are no longer required and no redundancy is payable as he was a contractor (baby? partner? bad timing? eh)

Bryson asks the Employment Tribunal to make a finding of fact that he is an employee so he can allege unjustifiable dismissal. The Employment Tribunal agrees with 3F6 that he is a contractor. Bryson appeals this 'finding of facts' to the Employment Court, and Judge Shaw rehears the evidence and finds that Bryson is an employee of 3F6 (This is just like the Environment Court hearing an appeal of a resource consent. It rehears the evidence and 're-makes' the council's decision.) 3F6 appeal on 'points of law' to the Court of Appeal, and convinces the majority of the Court of Appeal judges that Judge Shaw made 'an error of law' in her judgment (This is because the C of A cannot re-make the Employment Court's decision, it can only review the procedures followed for errors of law).

The Supreme Court decides that there were no 'errors of law' in the Employment Court decision. Judge Shaw considered all relevant matters in the Section 6 of the Employment Relations Act 2000. Therefore the Employment Court decision, that Bryson is, on the facts of his case, an employee of 3F6, stands.

This went through the various tribunals between 2002 and 2005. It is not very plausible to state that this area of law 'lacks clarity' or that this decision is a threat to the production of The Hobbit film.

27 October 2010

Bryson vs Three Foot Six

Here is National Radio on the Hobbit deal.

The Supreme Court case of James Bryson v Three Foot Six Limited, from 2005, is pretty much necessary context for the Key-Warners Bros deal.

Scoop have an explanatory summary from the Department of Courts, who also have the full record of the hearing (20 pages).

How long til he buys Elephant Man's skeleton?

This evening, we learned the outcome of negotiations held between Sir Peter Jackson's personal agent, the Hon John Key, Prime Minister of New Zealand, and the media multi-national Warner Bros.

Key has 'brokered' with Warners a special deal for Jackson and "The Hobbit" film project.

Jackson gets special legislation to clarify the distinction between independent contractors and employees in the film production industry. (PS the NZ Supreme Court says there is nothing to clarify)

Warners get $US15 million of tax rebates over two films and $US10 million for marketing.

So I wrote to Key.

Since when should Government be acting as an agent for private sector parties such as Warners and Peter Jackson? I had thought it was a central principle of your party that “Government should keep out of matters of business” and that “Government should not try to pick winners”.
Secondly, as a taxpayer, I am aghast that you have announced ad-hoc changes to film tax rebates to advantage only specifically Jackson and Warners, apparently in response to your meetings with Warners.
Thirdly, I am very disappointed that you intend to introduce legislation to Parliament apparently at the request of Warners and Jackson. And that this legislation is to clarify the law solely to specifically benefit the NZ film industry and Peter Jackson, instead of to achieve a general public goal. The Supreme Court has clarified the law of contractors and employees in Bryson vs Three Foot Six Ltd. This should only be amended by Parliament if due process is followed. This does not appear to be the case here.

06 October 2010

Hasta La Vista Paul Henry

Well I hope it is!

TVNZ has a comment form. I just used it! With this message.

Rick Ellis,
Chief Executive
Television NZ Limited,

Dear Mr Ellis,

Re: Paul Henry

Mr Henry's "expletive-laden tirade" of today (following his offensive comments about the Governor-General) confirms to me unequivocally that that Mr Henry no longer has any constructive role to play in Television NZ and that his two-week suspension was not the appropriate sanction.

It is time for this man to be removed from the airwaves and from TV NZ.

Yours sincerely

Canterbury Earthquake Response and Recovery Act 2010

Andrew Geddis has expressed concern about the unconstitutionally sweeping powers of Gerry Brownlee's Canterbury Earthquake Response and Recovery Act 2010.

I wondered if the Canterbury Earthquake Response and Recovery Act 2010 had a Regulatory Impact Statement. These statements are meant to give an "evidence-based approach to policy development".

I wrote to the Ministry of Economic Development asking if there had been a Regulatory Impact Statement. Their reply (Google Docs) fairly promptly; "No there wasn't".

So I wrote this letter and sent it to Bill English, Rodney Hide (as the Ministers behind the Government Statement on Regulation and Gerry Brownlee, as Minister of Economic Development and Earthquake Recovery.

"The Ministry of Economic Development has confirmed to me that a Regulatory Impact Statement (RIS) was not prepared for the Canterbury Earthquake Response and Recovery Act 2010 of 14 September 2010. That Act gives the executive branch of Government sweeping powers to create exemptions from existing legislation via orders in council.

Will you please explain to me why there was no RIS for the Canterbury Earthquake Response and Recovery Act 2010? Who authorised the Canterbury Earthquake Response and Recovery Act 2010 to proceed without a RIS? Please treat this as a request for official information.

The absence of a RIS appears to be inconsistent with the Government Statement on Regulation, which you released on 17 August 2009. It includes commitments that:
"We will introduce new regulation only when we are satisfied that it is required, reasonable, and robust".
"We will resist the temptation or pressure to take a regulatory decision until we have considered the evidence, advice and consultation feedback.."
"Ensure that Cabinet's requirements for assuring regulatory quality are treated as an integral part of policy development, and built into the policy process from the beginning"

The statement also encourages the public to hold the Government to account for actions inconsistent with the commitments in the statement. In light of that, I am writing to say that the absence of an RIS for the earthquake Act is inconsistent with the Government Statement on Regulation, and I wish to hold the Government to account.

The absence of the RIS also appears to be inconsistent with Treasury's Regulatory Impact Analysis Handbook, which indicates that a RIS is required for any policy initiative or review that considers new primary legislation (Regulatory Impact Analysis Handbook, 2/11/2009, The Treasury, ISBN: 978-0-478-33091-5)."

I wonder what I'll get back?