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Lights, Camera, Action! How the Screen Industry Workers Bill Indicates a Blurring of the Lines Between Employees and Contractors

It’s time for New Zealand’s media industry to make way for the Screen Industry Workers Bill, which introduces a collective bargaining framework that will allow contractors in the Screen Industry to be covered by minimum terms and conditions of work across their occupation and within specific projects with production companies.

This Bill is a stake in the ground from the Government, who have introduced this Bill alongside the recently passed Fair Pay Agreements Bill, with the intention to create new workplace relations frameworks that allow workers to band together to negotiate terms and conditions industry-wide with the aid of employment law resources.

Considering that contractors haven’t been afforded such extensive protections and resources by employment or case law, this Bill also indicates a new “normal” is coming. Even contractors will have access to minimum terms and conditions, blurring the traditional lines between contractor vs employee and potentially causing wider implications for businesses, including those in the screen industry.

Why was the Bill introduced?

In 2010 the “Hobbit Law” i.e. Employment Relations (Film Production Work) Amendment Act 2010, was introduced to exclude film production workers from being considered employees. This prevented workers from challenging their employment status of ‘independent contractor’, being able to collectively bargain, or remedy any contracting disputes through the employment relations’ institutions.

The Hobbit Law was introduced after the infamous case, Bryson v Three Foot Six Limited, sparked fear within the industry of large-scaled strike action amongst workers on the Hobbit Films, putting at risk the commercial interests at play.

When Labour was elected in 2018, the Film Industry Working Group (FIWG) was formed and tasked with coming up with recommendations to reform the area this area of law.

How Will the Bill work?

The Bill, once enacted, will allow contractors on computer-generated games, films, and programmes (“screen production worker”) to participate in collective bargaining either at an occupational level and/or with a single production/business.

Employees are not covered by this Bill and the previous Hobbit Law is partially upheld with the Bill stating that a screen production worker cannot invoke section 6(2) of the ERA 2000 to determine whether they are an employee. However, screen production workers who are employees will be able to utilise the FPA Bill to access this tier of bargaining framework, and the claims by contractors in this industry would reduce because of the new resources and rights afforded to them – which is discussed below.

It also introduces minimum terms and conditions which must be included not only in any negotiated occupational or enterprise level agreements, but also in any individual agreements between screen workers and the production/company from December 2022. These terms and conditions are:

  • The agreement must be in writing and include the duty of good faith
  • Businesses must follow process rules for making and varying individual contracts
  • Individual contracts must contain mandatory terms, such as such as rates of pay, entitlement to breaks, the extent to which public holidays are recognised, hours of work, procedural requirements for raising complaints related to bullying/harassment in workplace, access to dispute resolution processes and more.
    • Organisations will have 12 months to enact these mandatory terms
  • Terms must not be worse than any applicable collective contract (once they have been negotiated)
  • Engagers can’t cancel contracts in retaliation for workers exercising their rights

Although this law is based on pre-existing employment requirements, the bargaining at occupational-level introduces a new process aligned with the Government’s intent to ensure parties are dealing with each other in good faith.

Currently, workers who are not employees are excluded from the Employment Relations Authority, which has no jurisdiction to deal with matters outside of an employment relationship. However,  under the new Act, a contractor party can make an application to the Employment Relations Authority. The Authority must, through a series of steps, determine if there is sufficient support for collective bargaining within the occupation and determine the process for ratification.

Bargaining at an enterprise level is more aligned to traditional collective bargaining between employers and unions, as there is no requirement to go the Authority. Enterprise agreements cannot, however, go below the minimum terms set out in any applicable occupation-level collective.

Once a collective is ratified, any relevant individual contracts entered into within 6 months of the ratification date, will need to meet or exceed the minimum terms in the collective contract. Any existing individual contracts must comply with the collective contract within 12 months of ratification.

For some screen production workers, they may be covered by two or more enterprise-level contracts in respect of the same work. In such a case, the worker may choose which enterprise contract applies and notify the production company of their choice in writing.

What Will the Impacts be on the Media Industry?

For businesses in the media industry, this Bill is likely to impact them in the following ways:

  • The wide scope of the “screen industry worker” definition and limited exemptions mean, that a large amount of production companies and businesses will be covered and open to bargaining.
  • The new terms and conditions required to be implemented by 30 December will be a timely/costly process for media businesses to ensure compliance in time.
  • The ability for there to be multiple collectives at play when starting a new project, due to workers belonging to different agreements depending on their occupation, will increase administrative costs.
  • While businesses will be protected from strike action due to industry action being prohibited and can withhold consent to participate in enterprise-level bargaining, it is likely that businesses in the media industry will be required to access and utilise the dispute resolution services under the employment relations’ framework to ensure good faith is complied with.
  • Employees in the screen industry may choose to utilise the FPA to initiate industry-wide bargaining to be able to level up their terms and conditions of employment, opening up businesses to more bargaining.

Just another version of a Fair Pay Agreement?

As discussed above, the occupational-level bargaining also shares the same principles as the FPA’s industry-wide bargaining. It is anticipated that businesses who are covered by these large-scale worker coverage agreements will have to navigate the following:

  • Being covered by an occupational-level/industry-wide collective even though a business has not participated in bargaining and (for screen companies) their workers are not “employees.”
  • Being mindful about how interests will be represented in bargaining when there will be multiple other interests to navigate from other businesses/parties.
  • Using the Employment relations’ institutions to resolve disputes and have input on bargaining processes, which may result in lengthy and costly planning and results. Also, resulting in the added consequence of these processes becoming delayed due to demand for these resources.

Wider Implications?

The Screen Industry Bill has blurred the traditional line between contractors and employees by allowing contractors to have access to employment relations’ frameworks (i.e. bargaining, dispute resolution, mandatory terms which are based on employment law).

If the Government uses the framework of this Bill to create similar Bills that cover other contractor dominant industries, we will likely see the following trends emerge for workplace relations:

  • Union/representatives negotiating terms for an agreement that mirror the minimum statutory entitlements as set out in employment law i.e. require that screen workers are paid T1.5 for public holidays, ability to take paid time for sickness etc.
  • A lower number of claims in the Authority or Employment Court as to whether a worker is classified as an employee under s6, due to contractors becoming entitled to minimum terms and conditions. In the case of screen workers, these contractors are also specifically excluded from taking a s6 claim, therefore this may potentially be introduced in provisions for other industries.
  • Whether the resources in the employment space will change, as dispute resolution services and the Authority will begin to get more involved in bargaining based discussions than perhaps previously
  • Flexibility that is usually provided by contract for service agreements becoming limited as businesses become bonded to collective agreements, resulting in businesses choosing to go back to employment law and use fixed term agreements or other employment agreement options to minimise operational costs

This new legislation will be one to watch alongside the Fair Pay Agreement Bill, as it will be interesting to see how Unions begin to formulate their claims and whether or not businesses will have to be dynamic in how they manage their workforce.

 

By Madeline Wrigley, Business Partner

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

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