Background
A law change in 2010 by introduction of the Employment Relations (Film Production Work) Amendment Act 2020 (Hobbit law), meant that all screen production workers became independent contractors, unless otherwise provided in their written employment agreement. The key aspect of this law change was that it did not allow screen industry production workers a right to collective bargain and barred them from access to other employment rights. Under the Hobbit law, workers in the screen industry cannot challenge their employment status because they have no bargaining power.
In 2018, the Labour-led Government set up the Film Industry Working Group to design a model that reinstates various rights of the screen industry workers. The Government agreed with the recommendations of the working group and introduced the Screen Industry Workers Bill (Bill) on 18 February 2020. The Bill aims to restore the collective bargaining rights for screen industry workers and provides additional protection than simply repealing the Employment Relations (Film Production Work) Amendment Act 2010.
Who’s covered under the Bill?
Whether you’re covered under the Bill will depend on the type of screen production you work for as provided in Schedule 2 of the Bill. The Bill covers the following productions: computer-generated games; films; and programmes. Any individual who is ‘engaged to contribute to the creation’ of any one or more productions listed above will be covered as long as they undertake the work in New Zealand. However, it does not cover any individual who only provides support services or is a volunteer or is anyone that works for a company whose primary business isn’t in the screen industry.
Schedule 2 also states the productions the Bill does not cover, including advertising programmes longer than 5 minutes, amateur productions, news, sports, music, live event shows, games or programmes for educational or training purposes, religion, talk show or variety programmes.
Key points of the Bill are as follows:
- Provide clarity about the employment status of people doing screen production work;
- Introduce a duty of good faith on parties to a workplace, along with other mandatory individual contract terms
- Allow collective bargaining to occur at the occupation and enterprise-levels; and
- Create processes for resolving disputes arising from contracting relationships or collective bargaining.
Employment status of screen production workers
Screen industry workers are usually engaged as independent contractors, and section 6(1)(d) of the Employment Relations Act 2000 precludes the court from making a determination that a screen industry worker is an employee. The Bill retains the status of screen industry workers as independent contractors but provides alternate means for these workers to organise and pursue their collective interests.
Under the Bill, whether a ‘screen production worker’ is a contractor or an employee will continue to be determined by the type of written agreement they have. That is, screen production workers are employees if they are a party to or covered by a written employment agreement specifying they are employees, and therefore covered by employment law. However, screen production workers who are not a party to or covered under such a written employment agreement, are covered by this Bill, and therefore can bargain collectively according to the Bill’s bargaining process. Any worker in the screen industry who do not meet the Bill’s definition of a screen production worker, their employment status is determined by section 6 of the Employment Relations Act.
Good faith and mandatory contract terms
Clause 13 of the Bill imposes a duty of good faith on parties to a workplace relationship, requiring the parties not to mislead or deceive one another during the contracting relationship. The Bill also requires parties to bargain in good faith and prohibits industrial action (for example, a strike) if the action is intended to affect the outcome of bargaining.
All collective contracts must contain certain terms (for example, pay breaks, hours of work). Collective contracts will effectively set minimum terms for all the work they cover, which can be improved on in workers’ individual contracts.
Collective bargaining
The Bill aims to restore the collective bargaining rights for screen production workers. In doing so, the framework proposed by the Bill must be used to allow for fair and orderly collective bargaining. Bargaining will be possible at two levels; at the occupational level and at the enterprise-level. Occupational-level collective contracts will apply to an entire occupation of workers, for example all performers, writers, or production/post-production technicians, and enterprise-level will apply within a single production company or screen production.
There are various safeguards put in place to ensure collective bargaining is not misused:
- Bargaining may only be initiated if the Employment Relations Authority is satisfied there is sufficient support for bargaining on the side of the initiating party;
- Occupational-level contracts need to be ratified by way of a vote;
- Both workers and engagers need to agree to initiate bargaining for an enterprise-level collective contract;
- Individual contracts and enterprise-level contracts must not contain terms that are less favourable to workers than any term in an applicable occupation-level or enterprise-level collective contract.
Dispute resolution
The Bill introduces a tiered dispute resolution system which aims to support parties to resolve issues that may arise, including access to mediation and facilitation. For contract disputes and bargaining disputes, Employment services will provide free mediation, and the Employment Relations Authority can make determinations.
For bargaining disputes that involve fixing a term in an occupation-level collective contract, parties must first attempt mediation and facilitation, and if those are unsuccessful, the Authority must fix the term using the Bill’s final offer arbitration process. The final offer arbitration process is also available for fixing terms in enterprise-level collective contracts. In a final offer arbitration, the Authority is obliged to make an award by selecting in its entirety one of the parties’ final proposal on the issues. The Authority cannot fil gaps between the parties’ positions to settle on a middle ground and must only choose one of the parties’ final offer. This encourages the parties to make more realistic proposals as it raises the fear of losing the whole case.
Please feel free to get in touch with our employment team if you require further assistance.
Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
