The “Hobbit law” is no more
The Screen Industry Workers Act 2022 (the Act) has now received the Royal assent and will come into force on 30 December 2022*. The Act has the effect of replacing the Employment Relations (Film Production Work) Amendment Act 2010 (better known as the “Hobbit law”) and introduces significant reform to the screen industry, including the right for screen production workers to bargain collectively. The Government considered these changes necessary to afford greater employment protections to screen production workers, who were otherwise all deemed to be independent contractors (unless they had a written employment agreement).
The Act in its final form is substantially the same as the Screen Industry Workers Bill (the Bill) that we discussed here last year but has a few additional changes.
What does the Act do?
The Act creates new minimum rights and obligations for contracts with screen production workers (being specific workers involved in the production of films, programmes, commercials, and games). It does this by setting out the employment status of “Screen Production Workers” (as defined in the Act), and providing a framework for determining the contractual terms that will apply between Screen Production Workers and the individuals or entities that engage them in relation to screen productions (“Engagers”).
Significantly, the Act introduces:
- the ability for Screen Production Workers to engage in collective bargaining with Engagers to create collective contracts; and
- mandatory minimum requirements for a contract between an Engager and a Screen Production Worker.
Application to existing contracts
The Act applies to all existing contracts between Screen Production Workers and Engagers from the date it comes into effect, but the parties have a further 12 months to amend those contracts to include the new mandatory minimum requirements regarding:
- compliance with health and safety and human rights laws;
- a complaints process relating to bullying, harassment and discrimination;
- a disputes resolution process; and
- termination rights.
Application to employment agreements
However, the Act does not apply to (or supersede any existing agreement between) any employee within the industry who has a specific agreement with an Engager that clearly shows they are an employee (rather than a contractor).
The collective bargaining process under the Act is organised at two levels.
Any organisation (e.g., a guild or union) that represents Screen Production Workers or Engagers and that is registered with the Ministry of Business Innovation and Employment can negotiate collective contracts. Collective bargaining will either take place across an entire occupational group (an “Occupational Contract”) or within a single production or company (an “Enterprise Contract”).
Occupational Contracts are expected by the Ministry of Business Innovation and Employment to be the most common collective contract. These contracts will cover all work by a particular “occupational group” (which will be defined within the specific contract e.g., “composers” or “directors”) across all screen productions covered by the Act. Occupational Contracts establish minimum terms and conditions that must be incorporated in any contract between an Engager and a Screen Production Worker within that occupational group, regardless of whether a specific Screen Production Worker or Engager is a member of the organisation(s) that negotiated the Occupational Contract in the first place. Because of the broad impact of Occupational Contracts, the Employment Relations Authority will oversee the collective bargaining process and check an Occupational Contract before it takes effect.
Enterprise Contracts are negotiated directly between a specific Engager and worker organisations. An Enterprise Contract will set the minimum standard of contract for any Screen Production Worker who is engaged by that Engager and (i) is a member of any of the worker organisations that signed the contract, or (ii) whose type of work is specifically set out within the contract (i.e. a worker may be covered if a relevant guild / union signs the contract, even if the worker is not a member of that guild / union). While Enterprise Contracts are negotiated directly between workers and a business, they cannot introduce minimum terms less favourable than those already set out in any applicable Occupational Contract.
While the Act does not remove the ability for an individual Screen Production Worker to negotiate and agree their own contract terms, it does provide:
- the mandatory minimum terms that need to be included; and
- that the terms of an individual contract cannot be less favourable than the terms of any applicable collective contract.
Key changes between the Bill (at its second reading) and the Act
Many of the sections of the Bill have been relocated within the Act to make it easier to read and follow. One of the key differences between the Bill and the Act is the introduction of a new definition of “Workplace Relationship”. The Act clarifies that a Workplace Relationship covers a broad range of relationships, including between a Screen Production Worker and the Engager, a worker or Engager organisation (e.g., a union / guild) and its members, and a worker or Engager organisation and a specific worker or Engager. These changes have been made to highlight that the concept of the Workplace Relationship is ongoing and applies when negotiating a contract, as well as throughout the ongoing relationship between all the parties to, or represented under, that contract.
Key things to consider
- The Act cannot be contracted out of. Any clause in a contract between an Engager and Screen Production Worker that provides that the agreement “will not be subject to the terms of a guild or union agreement” (or similar) will no longer be enforceable. This is because a collective contract made under the Act will apply as a minimum standard, regardless of any provision in a contract that might try to exclude these.
- The Act creates an obligation for parties to act in “good faith” in a Workplace Relationship, including in the negotiation of individual or collective contracts. It is important for parties to keep this in mind when engaging in negotiations, and throughout any ongoing screen production relationship.
- Engagers have an express obligation to provide a contract to a Screen Production Worker for review, to allow the Screen Production Worker to receive advice on it, and to consider any issues raised with the proposed contract.
- New contracts between an Engager and a Screen Production Worker must contain the required statutory minimum terms. In addition, existing contracts must be updated to comply with these minimum terms within 12 months of the commencement of the Act.
- Where a collective contract is in place, parties cannot contract for work covered by that collective contract on terms that are less favourable than what is agreed in the collective contract. For example, when engaging a Screen Production Worker, an Engager will need to consider whether there might be an Occupational Contract in place that would set the minimum standard terms that the contract will need to include. Once an Occupational Contract has been negotiated, existing individual contracts will need to be updated within a year to comply with the new minimum terms established by the Occupational Contract.
Collective bargaining, and the Act itself, will establish minimum terms and conditions for screen production contracts that over time should help to provide certainty for the industry. However, the new bargaining framework, and the industry’s obligations under it, may be complex to navigate in the short term. If you have any questions about the Act, or your responsibilities or rights under it, please do not hesitate to get in touch.
*Except with respect to regulation-making powers, which came into force on 1 October 2022.
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