The Screen Industry Workers Bill (SIWB) will replace the Employment Relations (Film Production Work) Amendment Act 2010 (better known as the Hobbit Law).
The Hobbit Law was notoriously passed under urgency following the supreme court finding of Bryson v Three Foot Six Limited  NZSC6. This case found that Bryson, who was working for Three Foot Six Limited (a company hired to make models for The Lord of the Rings), was in fact an “employee” and not an “independent contractor”. This was significant as it raised the possibility that all film workers, who were historically understood to be, and treated as, independent contractors, may now fall under the category of an employee. As employees, film workers would be entitled to all the rights granted under the Employment Relations Act 2000.
This opened the door for an entire industry of workers to claim these benefits, for example entitlements to holiday and sick leave. The introduction of the Hobbit Law effectively reversed this decision specifically amending the Employment Relations Act to exclude film and video game workers (film workers) from being considered employees. Film workers have since formally been considered independent contractors (unless they have an individual employment contract in place). The Hobbit Law was backed by high profile film industry members including Peter Jackson (hence the nickname), one of the reasons for this being that overseas (and local) film production companies would be put off from working in New Zealand if they have the added costs and expectations of complying with the Employment Relations Act.
So, what now?
The SIWB will replace the existing Hobbit Law. This SIWB will now apply to all screen workers (being television, film and computer-generated game workers) and will make three main changes:
- Introduce the ability to collectively bargain;
- specifically provide screen workers with protection against bullying and harassment; and
- outline the contracting rights of individuals.
The SIWB introduces the ability for Screen Production Workers to collectively bargain for a minimum standard contract. Collective bargaining is something which contractors are typically prevented from doing under Commerce Act in order to prevent restrictive trade practices.
To manage the collective bargaining process, contracts are split into three tiers to be negotiated:
- Occupational Level Contracts which are negotiated on behalf of a specified occupation group by representatives (union/ guild) and creates a minimum standard for all production companies to comply with when they engage this occupation group in future;
- Enterprise Collective Contracts which will relate to a specific production company’s (engager) ongoing contracts with an occupation group when they work for that engager; and
- Individual Contracts which individuals can negotiate with the production company.
Representatives from the industry (i.e. unions and guilds) can be nominated when the majority of the industry group consent, to negotiate occupation and enterprise level contracts with the engager’s on behalf of their industry group. This negotiation will produce a collective contract which creates the minimum standard for contractors to enter into agreements with that employer, regardless of whether they personally are a member of that collective group (union or guild).
The tier system for the negotiations means that the Occupation Level contract will create a minimum standard which cannot be contracted out of, the Enterprise Level contract must negotiate above the terms of the Occupation Level contract, and also cannot be negotiated out of, and an Individual Contract must meet at least the minimum standards of both the Occupation and Enterprise level contracts if they are in place. Contractors continue to have the ability to negotiate their own terms within their Individual Contract, above the collectively negotiated minimum, but cannot negotiate below these terms.
Bullying and Harassment:
The SIWB introduces mandatory requirements to prevent harassment and bullying in the industry. This includes that a contract cannot prevent claims of bullying and harassment being raised, the contract must contain, in plain language, the process for how bullying and harassment claims will be managed, and that the complainant cannot have their contract terminated as a consequence for bringing a bullying or harassment claim.
The SIWB also introduces other contractual rights of individuals including that each screen production worker must be provided with their own contract, have the opportunity to obtain advice on this and have any concerns responded to in good faith. The contract must also provide an avenue to resolve disputes. The contract cannot be inconsistent with the SIWB and the SIWB cannot be contracted out of. A screen worker can also not be discriminated against for choosing to be, or not to be, a member of a collective group such as a union or a guild.
When does the Bill become law?
While this Bill is not the repeal of Hobbit law that many in the industry had called for, it does create new rights and requirements for employment relations with screen workers, which as contractors, screen workers were not previously able to access. The Bill is currently in its second reading, from here, it will go through the Committee of the Whole House, Third Reading and finally the Royal assent. The Bill had been expected to come into force this year, however the current circumstances mean that the introduction has been delayed. We anticipate the Bill will likely come into effect mid-2022. You can track its progress and read the Bill here.