Employment Relations (Film Production Work) Amendment Bill — In Committee 
Employment Relations (Film Production Work) Amendment Bill — In Committee 
[Volume:668;Page:15007] 
Thursday 28 October 2010 
( 
continued on Friday 29 October 2010 
) 
Employment Relations (Film Production Work) Amendment Bill 
In Committee 
Debate resumed. 
New clause 2A ( 
continued 
)  
Hon GERRY BROWNLEE (Leader of the House) 
: 
 I raise a point of order Mr Chairperson. Clearly discussions are going on that indicate that I may be wasting my time but I think the reality is that this debate sets a very bad precedent—a very bad precedent. Clause 2 which has the Act coming into effect the day after it receives its Royal assent has been passed. An amendment to clause 2 which would have required the Act to come into force on 1 April 2012 was defeated by the Committee. In defeating that particular date the Committee said that it expects that the bill will be enacted at that time 1 April 2012. It seems to me that because the Committee expressed very very clearly that it specifically rejected that date it is an utter nonsense to then immediately go through this exercise of working out whether the bill should expire before that date. We are getting into an absurd situation where the Committee expresses its will that the bill will come into effect on 1 April 2012 but is then asked to consider the expiry of the Act on 8 November 2010. That is an utter nonsense. 
We have been through this sort of exercise last year in fact—and at times this year—and I know that the argument will be that one question is about commencement and the other is about expiry. But commencement and expiry are not unlinked. If the Committee has expressed a desire that something should not only have commenced but be enacted on 1 April 2012 it would then be an absurdity for the Committee to ask itself whether it would be a good idea for the Act to expire on 8 November 2010. We end up getting into all sorts of ludicrous situations. We could equally go into a day-by-day arrangement and we have already had an expression from the Speaker—indeed I think Erskine May put forward the proposal—that if a decision was made by the Committee about a future date and there was rejection of other dates leading to it then there was no need to go day by day. This debate is in that same category. 
To be clear I say that the Committee in my mind has said that it expects that this bill will be enacted as a law on and beyond 1 April 2012 but it is now being asked to consider having the Act expire on 8 November 2010. That is retrospective on the decision that has previously been made by the Committee and it would be utterly appalling if we have to spend time going through this exercise today. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I do not want to take much of the Committee’s time because I think the answer is pretty obvious. I think most members in the Committee understand the difference between starting and finishing between commencement and expiry. The comments made by the Leader of the House could well be good debating points during the debate on the expiry date of the bill. 
Clearly some members on this side of the Chamber think that if such bad legislation is to come in it should be short-term legislation and should have a sunset clause. The concept of a sunset clause is one that is common. Normally I accept the view of the member that there are a few more actual sunsets before the sunset comes down on legislation but I think it is also fair to say that this is very controversial legislation. Members have a strong view and they have a right to debate it. 
Hon DARREN HUGHES (Senior Whip—Labour) 
: 
 I think the danger here is getting into a discussion or debate about the substance or nature of the amendment. The Opposition does not want to do that by way of a point of order; we want to do that by way of debate. The reason for my speaking to the point of order is that the Leader of the House on several occasions has referred to decisions that the House had made in respect of amendments and clauses in the bill. I think it is very important to stress that the House has taken no decisions. We are in the Committee of the whole House and it will be a decision for the House about whether it accepts the report of the Committee. If the Committee makes a series of decisions that are not logical or do not follow then the House can make the decision not to accept the report of the Committee of the whole House. I think the assertion by the Leader of the House that amendments should be ruled out because of decisions made by the House is not the case. They are decisions that may be made in the future but up until that point the Committee of the whole House across all the clauses of the bill is free to consider amendments providing they are within order. 
As Mr Mallard has stated his amendment is in order. The Leader of the House objects to it; he disagrees with it and I suspect he will vote against it. But those are debating matters not matters of whether the amendment is in order because this Committee is yet to report to the House on the final shape of this legislation. 
The CHAIRPERSON (Hon Rick Barker) 
: I thank members for their contributions. I say that the Leader of the House has raised indirectly the issue of substantiality which is that amendments need to be significantly different from each other. I say to him that this amendment does not fall into that category because commencement and expiry are two significantly different things. We only have to look at our birth certificates and death certificates to realise that they are radically different. The time of this might be somewhat closer but I think the order is not that it is substantially the same; it is significantly different. 
The issue then is its proximity. It is not for me to make a judgment about whether it is so proximate to the commencement to make it substantially the same; that is for the Committee to decide. It has a starting date and I accept that. It is now proposed to have an expiry date and it is for the Committee to determine whether that is so close as to make the bill a nonsense. That is for the Committee to decide. I cannot see any grounds for the Committee ruling it out; it is therefore a matter for the Committee itself to decide. There are no procedural grounds that I can see for ruling out the amendment. 
Hon GERRY BROWNLEE (Leader of the House) 
: 
 I raise a point of order Mr Chairperson. You have now left me somewhat confused and concerned. First although I have seen my birth certificate I most certainly have not seen my death certificate. Second if anybody else has I would appreciate knowing the hour and the moment. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I think the Leader of the House’s political death certificate could be written up about his inattention in this particular area. With a little bit of tolerance early in the morning from the Chairperson I want to show people what came into my inbox from Japan overnight. A young Kiwi asked what is happening to New Zealand. He said that New Zealand sovereignty is finished— 
Hon Tau Henare 
: And he lives in Japan. 
Hon TREVOR MALLARD 
: He is an exceptionally talented young Kiwi who is currently working in Japan. I am sure he will come home but he is less likely to come home with that member in Government. Why is that? We heard earlier—without referring to the point of order—that the Leader of the House does not know the difference between commencing and expiring. Gerry Brownlee showed earlier on that he does not know the difference between coming and going and Warner Bros took advantage of that. 
Chris Hipkins 
: They saw him coming. 
Hon TREVOR MALLARD 
: They saw him coming and they said: “We’ll go for it. We can see a buffoon who is not on top of his job. We can see a Government in chaos. Therefore we will ask for some stuff.” Actually Warner Bros did not ask for this. I want to make it clear that I believed Gerry Brownlee when he said that this was not a requirement of Warner Bros and that this was not necessary. That is why—because it was not a requirement of Warner Bros and it was not necessary in order to get  
The Hobbit— 
this legislation can expire. This legislation is not necessary and therefore there is no problem with it being relatively short-term legislation. That would be the effect of this. The Committee has decided that the Act should come into force the day after it receives its Royal assent. Therefore we accept that as things normally happen if the Government maintains its majority through the 28th for however long that lasts then it is likely that the legislation will need an expiry date or it will go on for ever. I think even the Minister in the chair is not satisfied that legislation of this sort of quality should be in there on an unending basis. She has already made one amendment and I think there will probably be three or four more that she will want to make as the errors in her drafting are pointed out to her. It may well be that she makes a decision to hook some additional legislation on to another employment relations bill—without reporting to the House the business of the select committee—and when we get to another day that will be back on the Table of the House. At that point because there is this other legislation going through it will be a lot easier to get coherent legislation. 
However I make it clear that I am slightly evenly divided here. I am not sure whether it is better to get this legislation tidy. I have in fact been very very critical of my colleague Charles Chauvel for acting as the drafting adviser for the Minister. I have told him to hold on to the other ones—he has found three or four other errors—rather than assist the Government as he has done in making bad law. It is bad enough making bad law that does not work but making bad law that does work is reprehensible and assisting the Government in it is something I think is relatively shocking. But there is no doubt that if law is bad law then the best thing is for the country to have it on the law books for the shortest possible period. We looked at the time when we thought the Governor-General would be available to sign it and we thought it would be possibly some time next week. Some of us contemplated different days for its expiry. Some of us thought that 5 November might be a good time. Then others thought that if we are going to get beyond this then 11 November Remembrance Day would be good—the day that peace broke out Fran Wilde’s birthday; there are a variety of reasons— 
Grant Robertson 
: 1 April? 
Hon TREVOR MALLARD 
: Well no. I do not think 1 April is a good date. I think the expiry of this is a date that should be celebrated. It should probably come in on 1 April. That is why we had 1 April 2012 as a commencement date because that is a day for fools. But I will not refer back to a previous debate that has been decided even if it has been decided in a rather unfortunate manner. 
So we have here relatively compact legislation; it is not a large piece of legislation. There would be an advantage in having the expiry date as 8 November 2010. I will look to my learned friend on my right Charles Chauvel to give me some advice in this area. If this amendment goes in and comes out so quickly that would probably mean that the statutes do not have to be annotated in order to show it as being current legislation. I ask whether Butterworths still does it. [ 
Interruption 
] My colleague thinks that the statutes might have to be annotated twice which seems to me to be an absolutely ridiculous— 
Charles Chauvel 
: It’s a job creation scheme. 
Hon TREVOR MALLARD 
: Well there are a number of job creation schemes for lawyers around the place and for people who work for lawyers but the idea that we would annotate a statute to say that it is in when it is already out seems to be a job creation scheme of the type that National would think of rather than one that is in the proud traditions of the make-work schemes for the lawyers. I must say that this Parliament spends quite a lot of time on making work for lawyers including in my view this particular legislation. This legislation creates a tension and puts people into an employment category that they do not want to be in. What is more—and I think we need to keep coming back to whether this legislation should expire—it is something that Gerry Brownlee said Warner Bros did not require and did not ask for. The legislation is not being passed for Warner Bros. If that is the case then I ask who it is being done for. We have had legislation that has not been brought in and has not expired which has been there effectively in the same form since I think 1907. [ 
Interruption 
] Again my learned colleague Mr Chauvel on my right says that— 
Grant Robertson 
: Not often on his right. 
Hon TREVOR MALLARD 
: He is always on my right! My colleague Mr Chauvel indicates that it was the Industrial Conciliation and Arbitration Act of 1894 that brought in this substantive area of law. We are changing legislation in the industrial area and also I think it is fair to say common law. We are managing to change stuff that goes way way back in the common law of the United Kingdom and the common law of New Zealand. This legislation is at the core of our labour relations system and has been since before the formation of both the National Party and the Labour Party and we are changing it for a reason that no one wants. For that reason I think it does not hurt for it to be a short-term change. In fact I have just had another idea. Maybe we could look at another expiry date whereby this legislation expires 90 days after it comes into force. That way we could call it trial legislation. It could test the arrangements and we could see whether it is appropriate and necessary. 
CAROL BEAUMONT (Labour) 
: 
 I congratulate my colleague the Hon Trevor Mallard on moving his amendment to insert new clause 2A into the Employment Relations (Film Production Work) Amendment Bill. I think it provides a very good opportunity for us to consider whether this bill is necessary. This amendment brings in an expiry provision for this legislation which is currently suggested to be 8 November 2010. As others have said that would be an interesting scenario given that the legislation would not actually be effective by then. Of course that would be the best possible outcome from the point of view of members on this side of the Chamber. This legislation is ill-thought-through. It is unnecessary and I intend to explain why that is the case. 
As a first suggestion I would urge members opposite to support this amendment and recognise that this legislation is poor lawmaking. New Zealand is in the situation where many people are now questioning the nature of our democracy and sovereignty. If Warner Bros can determine domestic legislation—which labour legislation clearly is; it is about how we organise our workplaces the arrangements that we say will exist and the minimum standards that apply to people in our industries—then we are in deep trouble. Certainly yesterday when I was speaking in the House on this matter I raised a number of questions. That was one of them. I said at that stage that I think questions will now start to be asked. People will want to know what this Government is doing and whether the changes in terms of increasing the subsidies available and also in terms of changing our domestic labour law are necessary. 
Certainly the  
New Zealand Herald  
has taken up the challenge. I can put it on record that the  
New Zealand Herald  
has asked the questions. The heading of its editorial is: “Price to keep Hobbit in NZ is extortionate.” The  
New Zealand Herald  
goes on to say it does not have anything against our film industry—none of us do despite what Government members are saying. But the editorial goes on to say: “In both instances”—in terms of both granting the extra money and changing our domestic labour laws—“Warner Bros used fears that the films would be lost to this country to leverage a better deal for itself. There was no question of  
The Hobbit 
 being shot elsewhere before an industrial boycott—lifted before the negotiations began—involving actors wanting to bargain collectively. Warner Bros simply seized the chance to apply pressure on unrelated issues. In both instances it should have been resisted. The Prime Minister however always seemed relaxed about amending the law to provide ‘clarity’ in the film sector.” 
This is the legislation that we are talking about here. In fact the clarity that this bill is supposedly providing is unnecessary. As many of us have already indicated including my learned colleague Charles Chauvel there is no lack of clarity about the status of people who work in the film industry. People in the film industry many of them work as independent contractors now. There is settled law on this matter. The tests are quite clear. For well-paid technical people and well-paid actors it actually suits their interests to be independent contractors. There are also people in the film industry who are less well paid and who are clearly employees. The tests have been outlined very clearly most recently by our Supreme Court in the 2005 Bryson case. 
This legislation is unnecessary and this is why I support the amendment of the Hon Trevor Mallard to let this legislation expire. If we want to talk about improving the conditions in the film industry that is a different matter. But it is not clarity that is required. In fact this legislation does not even deal with the matter that the dispute was about. The dispute was about independent contractors seeking to collectively organise to improve conditions in the film industry. It was not to negotiate a collective employment agreement as some have incorrectly said but to collectively look at their terms and conditions. This has been done previously in the Pink Book and it is about time that it was improved. International actors’ organisations will tell us that the conditions in New Zealand are not up to par. There was a legitimate question there. We should let this legislation expire and we should deal with the real issues. 
SUE MORONEY (Labour) 
: 
 We were once a proud nation were we not? We were once a proud nation where on the international stage people admired New Zealand because we took an independent stance. When the Americans said that they wanted nuclear ships to come into this country did we acquiesce to the Americans then? No we took an independent stance. The commencement date in clause 2 of this legislation is the date of the day of shame for this country. It is the day that our independence as a once-proud nation finishes. [ 
Interruption 
] David Bennett does not care. He does not care that New Zealand has been seen to acquiesce on the world stage to an American corporation to change our domestic labour law without any New Zealanders being able to come and make a submission to say what they think about this law change. 
What do New Zealanders think about this law change? That Government will never know. That Government will never know and it does not care; it does not want to find out because it is rushing this legislation through. The commencement date in this clause is a day of shame for this country. It was brought about by John Key because he in one fell swoop is ruining the reputation of this country as having an independent voice and as being proud in saying on the international stage that New Zealand does have its own view. New Zealand does not buckle to international pressure except for now. Now it is clear to the world that New Zealand does buckle to international pressure and this is an issue of our sovereignty. 
I am a Matamata girl. In fact to be fair I am a Walton girl but what is 10 kilometres between friends? There is no one in this Chamber who is more determined than me to see  
The Hobbit 
 shot in the locality where I was brought up. There is no one who is more proud of my town’s involvement in that film. But in that same location in Matamata there is another industry that would quite like $33 million at the drop of a hat—the racing industry—and it will come knocking on John Key’s door to ask where its $33 million is. Racing is another industry that is of incredible importance to Matamata the Waikato and the surrounding area. Members opposite know that they will have the tourism industry and the racing industry lining up next and why should they not? There are easily as many jobs at risk in the racing industry which is going down the tubes as we speak because of the Government’s approach of not having any economic development. 
I speak kind of in support of Trevor Mallard’s amendment. He has proposed that this legislation expire on 8 November but I would like to propose another date. I think that the first Tuesday in November would be a very fine day—Melbourne Cup day—for this legislation to expire. Why not have this legislation expire on Melbourne Cup day so that the racing industry could then have its turn? The racing industry could immediately knock on the door and say: “Mr Key where is our $33 million? We’ve got lots of jobs. We’ve got an industry that is of vital importance to New Zealand. Why don’t we get the same treatment that has just been handed out on a plate to an American corporation?”. 
Will that $33 million stay in New Zealand? Will it be in New Zealanders’ pockets? We know that $33 million is coming out of New Zealanders’ pockets—that it is coming out of taxpayers’ pockets—but where will it go? Will it go into the bottom line of Warner Bros? Where are the Warner Bros shareholders? Are they in New Zealand? Will any New Zealanders make any money out of the $33 million that is to be given away to Warner Bros? David Bennett says no. He says that no New Zealanders will make any money out of it. If that money went into the racing industry instead then we could see New Zealanders benefit through local jobs that are not just for two films but will go on and on as sustainable employment into the future. I think the commencement date for this legislation is pretty interesting because it will be a day of shame for New Zealand. 
METIRIA TUREI (Co-Leader—Green) 
: 
 The Green Party will be supporting the amendment new clause 2A which inserts an expiry date for this legislation. I think that is very wise. There is no doubt that passing legislation like this which will change the employment conditions for what could be hundreds perhaps even thousands of workers who may engage in the film-making and video game - making industry over the next decades requires a great deal more public concern and scrutiny than one day of investigation. Frankly it is a constitutional outrage that this legislation is going through at all and that the Government has involved itself in dirty commercial and political deals by selling out the people who are actually very vulnerable workers. 
I am very pleased to see that an expiry date has been proposed. We will be supporting that because the country needs to scrutinise this issue. The Government is trying to push this legislation through under urgency because it is riding a political wave at the moment but once that deal is unpicked the country will see just how dirty it is and just what the consequences will be. 
It is interesting to note that on  
Back Benches 
 the other night we were talking about this issue and the ACT Party said that it was very interested in seeing whether this kind of amendment which would mean that employees could be classed as contractors and therefore lose a significant amount of their employment conditions should be extended to all workers. That is what Hilary Calvert said. She would like to see the legislation potentially extended to all workers. That is the classic extremism of that party; we would not expect anything less. But there is that ideology sitting inside the Government at the moment that has the political power to interfere with workers’ conditions in a great hurry and at the behest of others. 
I am very concerned about the consequences of this legislation for vulnerable workers and particularly for Maori workers. I would like to hear more about why the Maori Party has decided to support this legislation in particular. Let us just think about the kinds of young people whom we are talking about here—young people who want to get involved in the film industry. We can look at how well our Maori film makers have been doing. We can look at  
Boy 
 for example which is excellent in that not only was it a New Zealand story but it involved young Maori New Zealanders and their own story and the film led them to this idea that they could participate in the film industry just like anyone else. It was enormously empowering to see a film like that made about young Maori men in particular and the opportunities that the film gave them both in the industry and in the expression of their lives. 
Because of the nature of the industry those young people will generally have to operate as contractors. A young person getting into this business particularly a young Maori person will have to operate under that contractual arrangement. They are very vulnerable workers by their very nature particularly young Maori men who we know tend to be done over in terms of the education system so they will not necessarily have all the skills or information that they need to negotiate as a contractor for the kinds of conditions that would make sure that they are OK. If they are then treated like employees by the company and they do not realise that this is happening because they are not aware of their full employment rights then this legislation means that they will be stripped of things like holiday pay and sick leave. They will be stripped of the capacity to be treated like employees and when they are being treated like employees they will not have the bargaining power nor the knowledge and information that they need to negotiate their contracts to make sure those things are covered. It will be these young Maori workers and particularly our Maori men who will be suffering from this. 
Young Maori employees involved in this industry at various levels will be the ones in the future—and not very many years away—who will be affected very badly by this. So why is the Maori Party allowing the Government that it is part of to pass legislation under urgency when no Maori lawyers no Maori employment lawyers no Maori communities no Maori iwi or hapu no Maori actors no Maori—nobody—have had a chance to look at this legislation and say “This is how it will affect us.”? Young ones who are out there in the industry should be able to look at this legislation and say how it would affect them how it would injure them and maybe how it would benefit them. There is no scrutiny of the effect of this legislation on the workers who will be the most affected. 
CHRIS HIPKINS (Labour—Rimutaka) 
: 
 I am happy to take a brief call on the amendment to clause 2 to insert new clause 2A into the Employment Relations (Film Production Work) Amendment Bill in which my colleague Trevor Mallard proposes to set an expiry day for this outrageous Warner Bros bill that would amend the Employment Relations Act. However I will pick up on a comment made by Mr Mallard. 
Mr Mallard suggested that 8 November would be an auspicious day on which this bill could expire—a day on which people could celebrate. He rejected the idea of 5 November and so on. I do not think that 8 November is an appropriate day to celebrate. In fact it is a very bad day for us in the Labour Party because 2 years ago on 8 November the National Party won the election. That is certainly not a day that we want to celebrate on this side of the Chamber. 
Hon Trevor Mallard 
: This could be a rebalancing. 
CHRIS HIPKINS 
: Perhaps this could be a rebalancing. It was the day that I was elected however so I guess we can certainly celebrate that on this side of the Chamber. There are probably more auspicious dates than 8 November for us to set for the expiry of this legislation. 
There are very good reasons for this law to expire and be off the statute book as fast as possible. In fact the  
New Zealand Herald  
editorial today points out how crazy the Government is to go ahead and rush this legislation through at the behest of Warner Bros. I am a little confused about why we are doing this under urgency. The Government seems to be trying to have it both ways. On the one hand it says Warner Bros did not want this legislation and on the other it throws Parliament into urgency to push it through because without it we would not have  
The Hobbit 
. So which is it? Is it that Warner Bros does not want it or is it that Warner Bros would take  
The Hobbit  
away without it? I am still waiting to hear. The Government cannot seem to make up its mind as to whether Warner Bros actually wanted this legislation. 
I think the  
New Zealand Herald  
hit the nail on the head when it said: “Warner Bros simply seized the chance to apply pressure on unrelated issues.” That is from the  
New Zealand Herald 
’s editorial and it hit the nail on the head. Warner Bros saw the Government coming. It saw the Government coming when John Key sent the VIP cars out to the airport to pick them up and whisk them away to Premier House for a high-level summit. Suddenly the price went up. Warner Bros realised it could demand whatever it wanted for  
The Hobbit  
to stay in New Zealand and the Government would acquiesce because it was so desperate. John Key was so desperate not to lose the photo opportunity of standing next to  
The Hobbit 
. 
We know that that is what this Government is all about: how many photos John Key can smile and wave in. The Government will oppose the sunset clause that Trevor Mallard has proposed for this legislation because it does not want to do anything that would risk losing John Key’s photo opportunities. Ultimately that is what this whole Government is geared towards: more photo opportunities for the Prime Minister. There is no substance to its programme. There is no plan to deliver on all the promises it made at the last election—no plan at all. It is all about photo opportunities. That is why it is so keen to keep  
The Hobbit  
in New Zealand. 
I want to see  
The Hobbit  
stay in New Zealand. I am glad  
The Hobbit  
is staying in New Zealand. But I do not think we should give up our sovereignty in order to have  
The Hobbit  
stay in New Zealand. I do not think we should become the Warner Bros colony that John Key wants to turn this country into as this fantastic diagrammatic representation that arrived overnight via email suggests. I think the Government should have had a bit more backbone than that. I actually think the Government should have gone into bat for New Zealanders. It should have shown that it has some principles rather than simply giving Warner Bros whatever it asked for. Apparently if we listen to what the Government is saying we find that it gave Warner Bros stuff that it did not ask for. The Government cannot make up its mind whether Warner Bros asked for this legislation. It says Warner Bros did not ask for it but it thinks it is really important so it will push it through under urgency in a single day. What a load of rubbish that is. It is one or the other: either Warner Bros did not want it or it did. The Government cannot make up its mind on that so the  
New Zealand Herald 
 editorial got it right. 
The other reason why this bill should have a sunset clause in it is very very relevant I think. The  
New Zealand Herald  
editorial got it right when it said “the granting of exemptions such as this almost invariably equates to bad law-making.” It went on to argue: “It is foolish to go down the slippery slope of offering ever-greater subsidies to attract industry or investment. That race always ends in tears.” 
DAVID BENNETT (National—Hamilton East) 
: 
 I move  
That the question be now put 
. 
GRANT ROBERTSON (Labour—Wellington Central) 
: 
 It is a pleasure to take a call on new clause 2A. I share with my colleague Chris Hipkins some conflicted views about 8 November. It is obviously the date on which the National Government won the election and although democracy had its say then I think that many New Zealanders who voted for the National Party are now regretting that. They are regretting that on 8 November—the day that we would have this bill expire—they voted for a Government that would come into office promising to do all kinds of things but that would then go back on those promises. We have had the example of raising GST. But those New Zealanders who voted for the National Party on 8 November 2008 would not have thought that in doing so they would be contributing to giving away part of New Zealand sovereignty. They have contributed to putting forward a bill and supporting legislation in this Parliament that is apparently—although Gerry Brownlee is not sure—about acquiescing to the demands of a corporation in America in the form of Warner Bros and about saying we will change our law and do whatever it takes no matter what it is to do what that corporation wants. 
The expiry date of this legislation on 8 November as proposed by Trevor Mallard is clearly something that the editorial writer of the  
New Zealand Herald  
would support. But perhaps what is even more interesting than that to me are the letters to the editor that sit beside the editorial in this morning’s  
New Zealand Herald 
 
from everyday New Zealanders which look at what the National Government has done and ask what it is about. I will read the very end of the first letter: “The Government has made it clear that our sovereignty and democracy are there for the highest bidder. Either that or this was just a ruse to rush through further attacks on the few remaining rights of working people.” 
That is the question. That is the question that needs to be answered in this Chamber. On this side of the Chamber it sure looks as if there has been some rampant opportunism from the National Government—rampant opportunism from the National Government. Having created a crisis because of Gerry Brownlee’s inaction as Minister for Economic Development in not keeping the relationship with Warner Bros going the National Government has had crisis management ensue. The Government has then broken out into opportunism and said: “Here’s another chance to attack workers in New Zealand. We’re doing it already with the 90-day bill and we’re doing it already with restricting union access; here’s another opportunity.” 
Hon Tau Henare 
: What’s that got to do with what we’re supposed to be talking about Mr Chair? 
GRANT ROBERTSON 
: We want this bill I say to Mr Henare to expire on 8 November under new clause 2A because we believe that the bill is bad law. The  
New Zealand Herald  
editorial is exactly right: these kinds of deals lead to bad law; this is that bad law. The Government has come to this Chamber unsure about why it is putting up this bill. It is either because Warner Bros forced its hand or because some huge dramatic problem in the film industry and the video game making industry needed to be solved. 
Hon Gerry Brownlee 
: Don’t constrain yourself. You’ve limited understanding of these matters. 
GRANT ROBERTSON 
: I am sorry; what did Mr Brownlee say—my “limited understanding of these matters”? If Mr Brownlee had any Wellington MPs in his caucus who were paying attention they would know that over the last 2 years there have been huge concerns about whether  
The Hobbit 
 would be made at all as a movie because of the problems going on in Warner Bros and the problems going on in MGM. Those problems happened; Mr Brownlee did nothing to find out. He did not go to visit the studios and he did not even try to get out there to see whether New Zealand’s film industry needed a little bit of assistance from the Minister for Economic Development. Whatever some people might say about my colleague Trevor Mallard—and they do say a lot—he worked hard on those relationships when he was the Minister for Economic Development. He made sure that New Zealand actually was there. 
Hon Trevor Mallard 
: 120 movies. 
GRANT ROBERTSON 
: One hundred and twenty movies were made; 120 feature-length movies were made under the Labour Government’s watch because we worked hard on building those relationships. We made sure that there were people in the Hollywood film industry who knew that New Zealand was committed to that. In the last 2 years in Wellington when most Wellingtonians who had any connection with the film industry were aware of the problems at the Hollywood end Gerry Brownlee did nothing. 
This bill should expire on 8 November because the writers of the letters to the editor in the  
New Zealand Herald— 
bar one of them—are correct. They are correct in saying that it seems that New Zealand is just prepared to sell itself off to the highest bidder. We know on this side of the Chamber that the  
New Zealand Herald  
is not always known as a harbinger of radical left-wing thought but here it is— 
CHRIS TREMAIN (Senior Whip—National) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (Hon Rick Barker) 
: I will take one more and hope we get something new. I say to members that this is a narrow part of the bill. It is about 8 November being the expiry date. 
CAROL BEAUMONT (Labour) 
: 
 I rise again to speak on the amendment to create new clause 2A. I think it is a very good idea. Some might say that it is a little mickey mouse to have a provision that would see the Employment Relations (Film Production Work) Amendment Act expire so soon but I think it is very appropriate given the nature of this legislation. The legislation itself reflects the mickey mouse approach of this Government to dealing with this dispute. 
This dispute involved a particular set of circumstances around trying to improve conditions for the people who work in our film industry. It is not unreasonable for them to try to do that. We all wanted  
The Hobbit 
 to be filmed here but as others have said the real issues were well signalled. Those issues were things like the need for greater support for the film industry. Sir Peter Jackson signalled those issues much earlier this year; Gerry Brownlee and others could have done something about them at the time. As for the actual dispute the Minister of Labour was missing in action. Nothing was done to try to help work through the issues with the parties. Instead we end up with a mickey mouse solution which includes this mickey mouse law that we are dealing with today. It is entirely appropriate that Labour has put up an amendment that would see this law expire very very soon. 
Labour members are not the only ones who see this legislation as somewhat mickey mouse. I draw the Committee’s attention to the cartoon in today’s  
New Zealand Herald 
 “Emmerson’s View”. It is very appropriate. It shows the Prime Minister going on about Warner Bros playing tough but saying that luckily he was cut from the same cloth. He looked them in the eye stared them down and then gave them exactly what they wanted. Interestingly “Mr Mickey Mouse” our Prime Minister then says: “But they did say there’s a studio door in Burbank with my name on it …”. That is how one commentator sees our Prime Minister. 
Emmerson is not alone in seeing this as a mickey mouse solution. There are very interesting letters to the editor in today’s  
New Zealand Herald 
. My colleague Grant Robertson noted one and I will read out another: “So Warner Bros are now a consultant on our labour laws.” That is pretty mickey mouse is it not? “Next will McDonald’s be telling us to have all our police wear guns?”. People see that this is a mickey mouse solution. This Government is putting up mickey mouse legislation and for that reason the Committee should support our amendment to have the Act expire on the close of 8 November 2010. 
The legislation is mickey mouse because first it does not deal with the actual issue which was around independent contractors working together collectively to try to improve their conditions. This legislation deals with a matter that is already sorted in law—that is the status of independent contractors. I tell the Minister that there is settled law on the matter. What is wrong with the decision in the Bryson case? It is very clear. Have there been problems since 2005 when the decision was made on the Bryson case? Has the film industry suddenly experienced the problem of people becoming employees when they were independent contractors or becoming independent contractors when they were employees? I think not and that is not the nature of the dispute we have been dealing with recently. What problem is this legislation dealing with? This legislation is not dealing with the matter that needed to be dealt with—if there was one. 
It is worrying to this side of the Committee that this mickey mouse legislation has potential to be used in a way that will disadvantage others. 
Hon Steve Chadwick 
: It’s just the start. 
CAROL BEAUMONT 
: My colleague Steve Chadwick is absolutely right. It is just the start. This Government as we have seen tends to push through legislation that has pretty bad consequences and then extends the legislation. Members can just look at the 90-day trial period legislation. It was supposedly to cover small workplaces; now we see it pushed through to cover all workplaces. 
This legislation for the film industry is unnecessary and we are worried about some of the consequences. It covers not only those people who work as actors voice-over actors stand-ins body doubles stunt performers extras singers musicians dancers and entertainers but also any other person engaged in film production work in any other capacity such as cleaners clerical workers and so on. 
CHRIS TREMAIN (Senior Whip—National) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Noes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Motion agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard be agreed to: 
to insert the following clause after clause 2: 
2AThis Act expires on the close of 8 November 2010. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Noes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Amendment not agreed to. 
Clause 3 Principal Act amended 
CAROL BEAUMONT (Labour) 
: 
 Clause 3 of the Employment Relations (Film Production Work) Amendment Bill is very broad. It is quite short in what it says: “This Act amends the Employment Relations Act 2000.” This side of the Chamber has a great deal of respect for that Act. It was legislation brought in by the previous Government. It repealed the badly thought of Employment Contracts Act—an Act that did a lot of damage to our economy and to our workforce. 
The Employment Relations Act the principal Act will be amended by this bill. I thought it was worth making a couple of contributions on the matter of amending the Act. The Government has shown it is very keen to amend the Act since it was elected. I wonder why that is. This Government is very backward-looking in terms of employment relations. Its members yearn for the days—the good old days from their perspective—of the Employment Contracts Act. They do not like working people wage earners and salary earners and working to achieve a better outcome for themselves and for their families. We are a low-wage economy and we are going backwards in that regard. The gap between wages in Australia and New Zealand is very high and will get worse because of the amendments that this Government is making to our employment relations system. 
This Government sees things like being able to sack workers for no reason without having to give them a reason and with no right of redress as good law. The reality is that most Kiwis do not agree with that. Most Kiwis do not think it is fair that workers can be sacked without reason without being told any reason and without any right of redress. It is just unbelievable but that is what the Government is doing. Of course it is extending it from small workplaces to large workplaces. 
That is one of the amendments to the Employment Relations Act that this Government is pushing through right now but of course there have been others. We will see the appalling situation where workers’ rights to meal breaks and rest breaks—statutory minimum rights—will be reduced. In fact the reality of that amendment to the Employment Relations Act will mean that many employees will be back to where they were before Labour changed the legislation. They will be back to the situation of being dependant on what they can agree with their employer because there will be no statutory entitlement to both paid rest breaks and unpaid meal breaks. This is the backward-looking dark age approach to employment relations. 
Members on this side of the Chamber see employment relations quite differently. We do not see it as a contractual obligation and we do not see labour as a commodity. We see employment relations as being about how working people work in their job in their workplace alongside their co-workers with their employer where they can band together collectively to try to have both an independent voice and also improve their working conditions and wages. We see that as a good thing. This is where the Minister for Economic Development and the Minister of Labour are so negligent because what we need is a complete transformation in the way that work is undertaken in New Zealand. If we want to lift our economic performance then we should not be looking at these nasty cuts to minimum provisions and attacks on working people; we need to be looking at high-quality workplaces where individuals are valued where collectively they have voice where their ideas are encouraged and sought and where we look at transforming our workplaces into much more productive places. 
There is a common advantage in lifting productivity which leads to higher wages for the workers and higher productivity and this means we achieve a better outcome from our workplaces and our industries. If we want the high-value economy that we say we want if we want to close the wage gap between Australia and New Zealand then that is where we should be focusing. The Minister of Labour and the Minister for Economic Development should be the two people who are advocating for that change. They should be saying that we should do things differently. They should not hark back to the bad old days of the Employment Contracts Act. As I said in an earlier contribution this legislation which is another amendment to the Employment Relations Act is a mickey mouse amendment. 
The CHAIRPERSON (Hon Rick Barker) 
: Before I call the next member I say to members that they will be challenged on their debating skills in the Committee stage. I draw members’ attention to a very fine chairperson of the Committee whom some will remember very fondly the Hon Marian Hobbs. She said that members must “focus on the wording of the bill on the intention in this bill and not to focus on alternatives that are not part of this bill.” This is about the detail of the bill. 
I say to members just before they get up—I see Mr Grant Robertson is very keen—that we are discussing clause 3 “Principal Act amended”. It simply states: “This Act amends the Employment Relations Act 2000.” That is it. Members need to focus on the detail of the bill. As I said members will be challenged but I am sure members are creative. I want to hear speeches that conform to the requirements that Marian Hobbs has placed on the Committee stage. 
GRANT ROBERTSON (Labour—Wellington Central) 
: 
 I will certainly endeavour to focus on the Employment Relations (Film Production Work) Amendment Bill which as you say Mr Chairperson amends the Employment Relations Act 2000. I think that in the debate at this point we can assess whether that is the appropriate Act to be amending what that Act does and whether this amendment is appropriate in terms of the Act. 
I refer the Committee to the object of the Employment Relations Act 2000. In particular the object of this Act as stated in section 3(a) is firstly “to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—”. I will say that again for members. The object of the Employment Relations Act—mentioned in clause 3 which we are discussing here—is “to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—”. The question I ask is whether this amendment bill supports that object. I ask whether this bill which says that no matter what happens in the employment relationship and no matter how it might change over time people are locked into the relationship they were in when they signed the contract supports that object. I say to Ms Wagner that that is what this bill does. 
This bill says despite what might have been decided in 2005 that whatever happens after a contract is signed people are locked into the relationship they were in when they signed the contract. When we look at the Bryson decision we see that the main element to arise from it was that the nature of the employment relationship depends not only on what the parties intend and agree but also on what they do and how they conduct themselves. This amendment bill says that the second part of that what parties do and how they conduct themselves is no longer a relevant consideration. The Employment Relations Act is now limited to such a point that there is now no ability to take into account how the relationship evolves over time. There is also now no ability to go to court to even test whether the relationship has changed in such a way that it is no longer appropriate to consider someone to be an employee or a contractor. 
We are looking at clause 3 in this bill that amends the Employment Relations Act and it is important to look at the objects of the Employment Relations Act and how this bill supports or does not support those objects. In my opinion the kind of change that the Government is proposing here is against the idea of good faith. It is saying that no matter what actually happens in an employment relationship if good faith is not progressed and if things change in the employment relationship the relationship is still locked down to how it was when the contract was signed on day one. Mr Bryson’s case shows us that employment relationships can change. Someone can be taken on as a contractor but then in effect become an employee by the nature of ongoing work within the same organisation and by doing a similar piece of work. Eventually both parties might consider that person to be an employee but under this bill they cannot do that. They cannot take the relationship to court to test it and they cannot change it; it is locked down. As we look at clause 3 of this bill which amends the Employment Relations Act my view is that the objects of the Act are no longer being fulfilled by this amendment. 
Let us continue to the second part of the object of the Employment Relations Act. Section 3(a)(i) states that the object of this Act is to build productive employment relationships “by recognising that employment relationships must be built not only on the implied mutual obligations of trust and confidence but also on a legislative requirement for good faith behaviour;”. Trust confidence and good faith are key objects of the Employment Relations Act which is mentioned here in clause 3. They are being broken by this amendment. How can trust and confidence be there if it is actually impossible for somebody to relook at the nature of his or her employment relationship? How can it possibly improve trust and confidence which are the objects of the Employment Relations Act if someone can no longer go to court to assess whether that relationship has changed? 
The law in this area is settled. There is no need for so-called clarity. Movies have continued to be made in New Zealand since 2005. Major big-budget production films have been operating perfectly well in settled law. There is no need to undo the Employment Relations Act. This bill amends the Employment Relations Act. The Act in itself has in its object clear things— 
The CHAIRPERSON (Eric Roy) 
: I have been listening to this debate on television before I came here and I am mindful of the ruling that the Chair whom I relieved the Hon Rick Barker made in quoting Marian Hobbs in Speaker’s ruling 10/5. This is not a debate about the objects as the member has just been relaying; it is specifically about clause 3 which states that this bill amends the Employment Relations Act. It is about amending and we shall keep a tighter rein on subject material in relation to this. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. I am sorry; I was out of the Chamber. I am not sure whether we are allowed to refer to watching the debate on television; I think that is for people outside. I will not refer to watching on television. The question I have is whether it is in order seeing as we are proposing amendments to the Employment Relations Act—because it goes to whether the Opposition might support this clause; clearly we will not support the bill—for other amendments that are obviously related and within the general scope of the bill to be added. As the train is going through can additional carriages be added to it? I think we can accept there cannot be general totally unrelated amendments to the Employment Relations Act but how far the Act is opened up by this clause affects whether in fact we support it. Some of us would like to make some other changes as well and we might well be supportive if that was the case. 
The CHAIRPERSON (Eric Roy) 
: I think I will now read Speaker’s ruling 108/5: “Members must focus on the wording of the bill on the intention in this bill and not focus on alternatives that are not part of this bill.” I think that answers the member’s question. 
SUE MORONEY (Labour) 
: 
 I thank the Chair for that clarification. I want to speak on clause 3 which amends the principal Act and names the principal Act to be amended as the Employment Relations Act 2000. I accept that the previous contribution from my colleague Grant Robertson was asking a very important question about whether that is the appropriate Act— 
Grant Robertson 
: The amendments. 
SUE MORONEY 
: The question is whether these amendments are appropriate for the Employment Relations Act because of the objectives that that Act very clearly sets out. 
I think it is important that when a Government particularly in urgency without seeking the views of the New Zealand public—it sought the views of an American corporation but did not ask the views of the New Zealand public—decides to amend one of our domestic laws at the behest of an American corporation without any reference to the New Zealand public it is appropriate that we ask whether these amendments are appropriate for this particular Act. Its objective is to have productive workplace relationships and enhance through good faith those workplace relationships. 
These amendments as I understand them—and perhaps the Minister in the chair the Minister of Labour can get up and correct me if I am wrong—attempt to interrupt the employment relationship. They make an employment relationship for workers less possible in the film industry. These amendments determine that once two parties in the film industry agree—an actor or anyone working in the film industry and the person who is contracting them as an independent contractor—that agreement can never be changed or contested. The parties to that agreement can never ask whether at some point it has changed from being an employment relationship of an independent contractor to an employment relationship of an employee. That is at the heart of what this clause seeks to do. It seeks to amend the Employment Relations Act. That Act was put in place with the objective of enhancing and making more productive employment relationships within workplaces. Yet here we have this bill being put forward which seeks to have less of a relationship between the film industry and the staff whom it—I say loosely—employs. I wonder whether I can still say “employ”. 
The whole point is that this legislation is being put through at the behest of an American corporation without any reference to the New Zealand public and without asking them whether they think it is the right Act to be amended at all. The very point of this amendment is to say that there is not an employment relationship. In the film industry for some reason—in the film industry alone—the vast majority of people will not be in an employment relationship; they will be in something different called an independent contracting arrangement. 
This amendment causes me to think about the other times that the Employment Relations Act has been amended particularly under urgency. I wonder how many times this Government has amended that particular Act without any reference to the New Zealand public and without giving them the opportunity to say: “Hang on that is our Act of Parliament and we have something to say about it.” In fact straight after the election it happened a first time when the so-called 90-day trial period legislation amended the Employment Relations Act and again the New Zealand public had no opportunity to come and voice their issues. Companies could not come and say what they thought workers could not come and say what they thought and even the Law Society could not come and say what it thought about the Employment Relations Act being amended in that way. It has not been able to do that in this instance either. I think that is a very important issue to raise when debating clause 3. We have not had—as we like to have I think in this Parliament—a submission from the New Zealand Law Society. We have not sought its advice about whether this is the appropriate Act to amend in this format given that its objective—[ 
Interruption 
] Pardon? 
Hon Tau Henare 
: Tell them to come and stand for election. 
SUE MORONEY 
: Oh the Law Society? So now anyone who wants to have a say over any legislation according to Tau Henare and National needs to be a member of Parliament. Apparently only members of Parliament can have something to say about whether the Employment Relations Act is the correct Act to amend. 
SUE KEDGLEY (Green) 
: 
 I would like to speak to clause 3 of the Employment Relations (Film Production Work) Amendment Bill which is really asking whether this Parliament will amend the Employment Relations Act so that Warner Bros will be happy. I mention in passing and to put some context here that there is a great exhibition at Te Papa at the moment about the 20th century. There are some fantastic clips of Prime Ministers of New Zealand like David Lange and Norman Kirk standing up in the world proclaiming our independence against America standing up for democracy and standing against injustice. I even wrote down what Norman Kirk said. He said we must be prepared to make our voice heard. He said: “We are a small nation but we will not abjectly surrender to injustice.” 
But now in the 21st century we are rewriting the script. Now we will abjectly surrender to any multinational corporation. We will amend the Employment Relations Act or any other Act to make a multinational corporation happy. We have now entered a new era of grovelling—grovelling our way in the world. It is a shame that the chief groveller is not here to defend his actions. Many people are asking where it will all end. 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. I apologise to the member for interrupting and I apologise to my colleagues that I have to do the Government’s job. But referring to the Prime Minister as a chief groveller is out of order. 
The CHAIRPERSON (Eric Roy) 
: Certainly the member is correct that an allegation of someone being a groveller was made but I am not sure that it was specifically levelled at the Prime Minister. I guess it is probably appropriate for a timely warning. This debate has been robust but once get into name-calling it escalates to a situation where the chair has to intervene. 
SUE KEDGLEY 
: People are asking where it will all end. What will happen if next month McDonald’s comes to the Prime Minister and the Government and says it will shut all its fast-food restaurants in New Zealand unless the Employment Relations Act is changed to require that all McDonalds workers are contract workers who will not be entitled to penal rates or holiday rates? Why would it not do that on the basis of what is happening here today? What about Woolworths another multinational corporation which owns the second-largest supermarket chain in New Zealand? What if Woolworths comes to the Prime Minister and says that unless the Employment Relations Act is changed it will pull out of New Zealand? What if it threatens to shut down all its supermarkets unless the Employment Relations Act is amended? 
I am not sure how many MPs in the House have read the excellent book by David Korten called  
When Corporations Rule the World 
. It is described as a modern classic and it basically asks whether Governments are becoming obsolete and whether corporations are now in charge. Some have said it is becoming increasingly prophetic each passing day. It is certainly prophetic right here in New Zealand. There is living proof now that corporations—even if they do not rule the world—certainly rule in New Zealand. If any corporation wishes to or threatens to take away its toys and demands that we change the Employment Relations Act we will willingly make that change. 
What is so unique about what is happening today I think is that it is so blatant and so overt. All of us who have been around in Parliament for a while know that multinational corporations exercise huge influence over this House. Speaking of the Employment Relations Act I recall that I had an amendment to the Employment Relations Act—my bill about flexible working hours. The corporations came in here and they threatened that if that bill was passed they would take their workforce overseas and shut down their factories. They said that amending the Employment Relations Act would be disastrous. 
Normally all the influence of multinational corporations happens behind closed doors. It happens covertly through lobbyists. But this move was so overt there was no need for lobbyists. All that was needed was to send over a whole lot of executives from Warner Bros and we slavishly capitulated and changed the Employment Relations Act. 
The other thing that is extraordinary is that usually when a multinational corporation gets to change the Employment Relations Act— 
Hon STEVE CHADWICK (Labour) 
: 
 I will take a short call on clause 3 of the Employment Relations (Film Production Work) Amendment Bill which states “This Act amends the Employment Relations Act. Fundamentally that takes us back to why we are here in Committee in urgency debating amendments to industrial legislation that are not required. They were never asked for by the actors and those engaged in the industry or by the producers. I go back to what Gerry Brownlee said in May 2009 when he was fronting a New Zealand film networking function. He stated: “Our competitors continue to work to attract productions to their countries. So while we don’t want to engage in a ‘race to the bottom’ within higher and higher incentives the next step is to cultivate a regulatory environment that makes it easy for filmmakers to come to New Zealand and film in our locations use our facilities and hire our workers and engage our talent pool.” 
Labour would have agreed with that statement in 2009 but never since 2009 have workers in the film industry asked for legislative change to give them clarity or to give producers clarity about hiring staff. They have never asked for that. 
Hon Gerry Brownlee 
: Why did they put on the black ban? 
Hon STEVE CHADWICK 
: The Minister opposite knows that when he met them in his office they reached an agreement to work together on looking at a new approach based on the Pink Book and reaching an industrial standard. The Minister knows that that was the agreement—[ 
Interruption 
] Yes but the agreement was never to change the Employment Relations Act. It was never in National’s film strategy. It was never in its economic plan that it would amend industrial legislation and go back to the days of the Employment Contracts Act. It has never ever stated to the public that changes to the Employment Relations Act were required. It was not until Warner Bros came and bullied New Zealand saying that it wanted clarity that this happened. The Americans will be laughing at the fact that New Zealand has rolled over bringing this House into urgency—making a mockery of urgency—just to get the Employment Relations Act changed today quite apart from the incentives. 
What Mr Key has changed in perpetuity is the right of workers to have their actual employment conditions be the determinant of whether they qualify for sick leave annual leave and normal working hours. Commentators are noticing this. The Government wanted to attract the industry to New Zealand so it was prepared to go beyond financial incentives to change the paramountcy of our domestic legislation our industrial legislation for the will and the demands of Warner Bros in America. That is simply disgraceful. The whole premise for this wrong track that New Zealand is now going down is that Ministers were confused. They were in a chaotic state. They were responding to pressures that they perceived about the need for a change to the Employment Relations Act. They sought Crown Law advice based on the assumption that the actors wanted collective bargaining. That was not right. That will cost the Crown— 
Hon Gerry Brownlee 
: Yes it was. 
Hon STEVE CHADWICK 
: No it was not right. The actors were working on an industrial standard based on the Pink Book and the Minister knows that. He had them in his office and that was the agreement when they left his office. Those parties agreed to find a Kiwi solution together. It could have been our own domestic solution based on those industrial standards and we could have moved forward. 
Now we have a stripping of the rights of workers a stripping of all of those benefits that they had fought so hard for industrially and that is why I cannot support the change to the Employment Relations Act proposed in this bill. The workers in the industry know they are independent contractors. They absolutely know that. They do not know what benefits accrue whether they are an employee or an independent contractor but they knew that they had the ability to work together to find the right industrial solution. 
Hon Tau Henare 
: That’s the next clause. 
Hon STEVE CHADWICK 
: No it is not—we did not need to change the Employment Relations Act. We are going back to the dark days before 2002. 
MOANA MACKEY (Labour) 
: 
 I am happy to take a call on clause 3. It states that the bill amends the Employment Relations Act 2000 which is domestic legislation. The Labour Party has a proud history of fighting for independent foreign policy. I think today is a sad day in the Chamber when we now have to fight for independent domestic policy. This is a huge shift. We are amending the Employment Relations Act because a foreign multinational company has pressured the Government to do so. We on this side of the Chamber do not believe that step was necessary and we do not believe it should have been taken. 
I had an email overnight from a colleague in an overseas Parliament who said to me that this cannot be true. He said that someone told him New Zealand was amending its Employment Relations Act 2000 because a foreign company had asked us to and had put pressure on us and he said that that would not happen in a modern developed country like New Zealand. I had to go back to him— 
Hon Tau Henare 
: Is he from Cuba? 
Hon Gerry Brownlee 
: No he’s from North Korea. 
MOANA MACKEY 
: —he is a member of Parliament in the Westminster Parliament in the UK—and say that it is true. It is true. A foreign company came and said that it wanted us to amend the Employment Relations Act 2000 because it did not like it and our Government rolled over and said yes it would do that. 
The Government did not have to do that. Had the Government negotiated this dispute better we would not be here amending the Employment Relations Act. Had our Government not gone out and tried to whip up anti-union sentiment because it saw an opportunity to amend the Employment Relations Act 2000 we would not be here. The Government thought it was a chance to have a whack at the unions and change some employment law that it did not like. But had it pointed out the reality instead which was that this matter had been settled there was no danger no more industrial action was being threatened and it was a peaceful industrial relations environment—emails that have been released have shown that the Employment Relations Act did not need to be amended in order to fix it—we would have been in a much stronger negotiating position. We would not have needed to be here sitting under urgency passing law to amend the Employment Relations Act 2000 at the behest of an overseas corporation. We may not have had to pay as much subsidy either. 
The Government had a choice. It wanted to amend the Employment Relations Act so it decided it would whip up some frenzy which was not justified. The Government knows it was not justified because this was all resolved a long time ago. Since the court case that we are discussing we have made huge numbers of movies in New Zealand and have not had a single problem that would suggest we need to amend the Employment Relations Act 2000 to fix it. We have made a huge number of movies with absolutely no problems. Government members know this was sorted. 
We are here because our Government decided to take an opportunity. Last week there were protests attended by tens of thousands of people against some of the Government’s other employment relations changes. It was feeling the pressure so it thought it would have a whack at the unions and amend a bit of law it did not like anyway the Employment Relations Act 2000. Who cares if it means we end up in the position of paying higher subsidies offshore and also have Parliaments around the world looking at us saying: “Are you kidding me?”. We are changing laws in New Zealand because Warner Bros asked the New Zealand Parliament to. 
Of course everyone in this Chamber is pleased that this movie will be made here but we do not believe that the Employment Relations Act 2000 needed to be amended in order to do that. If the Government had handled this matter better—if Mr Brownlee himself had developed relationships with Warner Bros like the previous Government did and not come in at the eleventh hour when the relationship had broken down and when everything was in a shambles—we would not be here amending the Employment Relations Act 2000. 
Let us be clear. This is opportunistic by the Government—very opportunistic. Government members are not telling the whole story in their speeches. Everyone is very very pleased that this film will be made here; it is a shame that the price we had to pay was being seen as a Parliament that no longer has independent domestic policy. 
Dr CAM CALDER (National) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Noes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Motion agreed to. 
A party vote was called for on the question  
That clause 3 be agreed to. 
Ayes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Noes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Clause 3 agreed to. 
Clause 4 Meaning of employee 
Hon KATE WILKINSON (Minister of Labour) 
: 
 I will make a couple of comments and I will draw the Committee’s attention to a couple of minor tidying-up amendments in my name. The first amendment clarifies that the employment agreement is to be in writing. I thank the honourable member Mr Chauvel for pointing that out. Although it is not really necessary I am happy to move that amendment to make it crystal clear and to appease his concerns that employment agreements have to be in writing. The second amendment is technical and minor. It provides for example for producers and directors who may also be involved in promotional and advertising work. 
I have just a couple of comments on clause 4 because this is the substance of the bill. I will make a couple of comments on some of the questions that have been proposed in previous debates. There has been a suggestion that Warner Bros was consulted on labour laws. To clarify if there is a law that needs clarity if there is a law that needs certainty or if there is a law that needs fixing then I do not really mind who talks to me about it. I do not think that is a loss of sovereignty; I think that is called listening. But what I do think is a threat to our sovereignty is international foreign unions attempting to dictate to us what happens in our country. At the end of the day New Zealanders do not want international unions jeopardising our jobs and they do not want international foreign unions threatening our economy. 
This bill and clause 4 in particular is very simple. If someone involved in the film industry wants to be an independent contractor then he or she can be. If that person wants to be an employee then he or she can be. It is as straightforward as that. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 That was a pathetic little contribution. It has been the only contribution to date from the Minister in the chair Kate Wilkinson and she did not even apologise for poor drafting. She did not even apologise for the mess of a bill that she has brought to the Committee stage. She already has two amendments and it is my bet that she will be back in the House to further amend this legislation before the end of the year. It is my bet that she will be back in the House with further amendments to this legislation before the end of the year to correct the other three errors that we may or may not tell her about at some stage. 
Hon Tau Henare 
: What’s the wager? Put the house up. 
Hon TREVOR MALLARD 
: As Tau Henare knows the Minister has another train coming through due for report back very soon from the Transport and Industrial Relations Committee. I bet that she will be further amending these amendments as part of that exercise because of her rushed hurried pressured useless legislation that she has brought before the House. 
In the time that I can remember I do not know whether we have had a less effective Minister of Labour. I go back a long way. I can remember my colleague Stan Rodger and although one did not always agree with him he was always thorough. He was well prepared. 
Grant Robertson 
: Jim Bolger. 
Hon TREVOR MALLARD 
: Jim Bolger was my local MP and the Minister of Labour before I was a member of Parliament. He would never have brought shoddy legislation like this to the House. He would have had the officials in his room for days and days working through the legislation and making sure that he had it right rather than bringing in legislation with five errors only two of which have been identified to date by the Minister. 
I did not know of Kate Wilkinson before unlike Mr Chauvel who used to regularly feature in those little legal boxes as one of the top five or six employment lawyers in the country. Certainly in the period before and after he appeared in the Supreme Court that was the case. To be fair I did not know of Ms Wilkinson when she was an employment lawyer in Christchurch. She did not feature in those cases but my friend Mr Chauvel assures me that she was a competent employment lawyer. I would have thought that a competent employment lawyer would give this exercise— 
Hon Tau Henare 
: At least she worked for a living! 
Hon TREVOR MALLARD 
: At least she worked for a living rather than going around bottling union officials. At least she used to work for a living rather than losing her job as a result of applying a broken bottle to the head of a union official as Tau Henare did—as Tau Henare did. 
The point I am making is that if the Minister wants to take a wild and wonderful approach to legislation and if she wants to be lazy and lack thoroughness in the way that this legislation does she should have got Tau Henare to be the Minister. That would fit because this is the quality of legislation we would expect from Tau Henare if he were the person involved in drafting the legislation— 
Carol Beaumont 
: That’s a terrible idea Trevor. 
Hon TREVOR MALLARD 
: No I think that if we match quality with this bill then it is Tau Henare quality. 
I am told by Mr Chauvel and I accept his assurance that the Minister— 
Carol Beaumont 
: What about David Bennett? 
Hon TREVOR MALLARD 
: No please not. The bill is not as bad or as useless as that. It could not have been drafted by that member. I have seen that member chair a select committee and he cannot even do that properly. 
David Bennett 
: Oh come on Trev you like it. 
Hon TREVOR MALLARD 
: I like it? I hate going to that committee! I hate going to that committee but that is getting slightly off-topic. 
I will come back to the bill and to the fact that there are a number of amendments. I think it has generally been accepted by the Committee that this is the clause with the most substance in it. It is the machinery clause of the bill. I see that the Minister is nodding and she is right. This is the clause on which we expect to debate a series of amendments and to have a lot of discussion. I will be interested to hear the views of members opposite. Unlike in the earlier stages where they were notable by their silence on this particular clause I expect that we will have a reasonable amount of debate and discussion. 
Essentially I have two sets of amendments although I presume they will be put to the Committee in three parts. Two of them are alternative ways of handling the expiry date. A decision was made not too long ago not to have the whole bill expire on 8 November. My suggestion is that some clauses could expire on that date. It would not take out the entire legislation but from our perspective it would render it more acceptable from that time on. That is the reason we have taken that approach. 
Hon Dr Wayne Mapp 
: What’s wrong with people making a choice in writing? What’s your fundamental objection? 
Hon TREVOR MALLARD 
: The member should catch up with the facts. Although he might have been an assistant lecturer in law at a polytech in Auckland one would think that as a Minister he would have learnt to read legislation and to get the fact that our amendments were tabled before the Minister’s. The Minister was still asleep when our amendments were tabled. I want to make it clear that if we were supportive of making this legislation effective we would support the Minister’s amendment. It is one of five necessary steps towards doing what the Government wants to do. But we do not support it so we will not. I make that clear. 
If the member had been awake yesterday instead of being asleep he would have seen some criticism on this side of the Chamber of my colleague Charles Chauvel the pending Attorney-General inter alia when he made what I thought was a tactical mistake in giving the Minister advice on one of the amendments that we are now discussing. Mr Chauvel is the person who—I do not want to say unwittingly—without a proper tactical sense made some suggestions to the Government on a way in which it could do what it was trying to do. 
Carol Beaumont 
: He was being helpful. 
Hon TREVOR MALLARD 
: He was being helpful. In my opinion he was being too helpful to the Minister. If Mr Mapp—is he Dr Mapp? 
Grant Robertson 
: He is Dr Mapp. 
Hon TREVOR MALLARD 
: Oh dear oh dear where did that come from? Was it a raffle? I bet it came from the United States. We had somebody here called Bernie Ogilvy. He had one of those doctorates as well. With the top of a Weet-Bix packet and quite a decent cheque donation one can get a doctorate from the United States. We see the evidence of that here in the Chamber. I want to know whether— 
Dr Cam Calder 
: I raise a point of order Mr Chairperson. My colleague Dr Mapp has a PhD from that fine University of Cambridge. 
The CHAIRPERSON (Eric Roy) 
: I guess that is a debating point but we get to these kinds of interplays when we tend to disregard the fact that all members are honourable members and the debate starts to degenerate. I give just a little caution. Let us try to keep the nomenclatures appropriate. 
Hon TREVOR MALLARD 
: I think there is nothing wrong with a doctorate from Cambridge Massachusetts as long as the cheque that paid for it was not too big. It may well qualify the member for working on a film as an actor because I think it is fair to say that his dramatic skills are certainly better than his legal skills as we have seen in the Chamber on numerous occasions including in his last contribution. The member does not appear to be able to contribute to this debate from a standing position. He appears to be able to stand and he appears to be able to talk but not both at the same time. That is typical of the approach that Ministers have been taking on this legislation. 
Hon Dr NICK SMITH (Minister for the Environment) 
: 
 The fact that that was the very first speech on the substance of the Employment Relations (Film Production Work) Amendment Bill and that it amounted to 10 minutes of personal denigration speaks volumes about the differences between members on this side of the Chamber who are advocating for the national interest for our country and an Opposition that is more interested in playing personality politics and looking after its Aussie union mates than in looking after what is important for our country. 
Let us go to the core of what this clause is about. It is a very simple issue: is the law clear about whether people working in the film industry are contractors or employees? I think that this Committee should agree that having certainty about that is in everybody’s interests. Let us see what actually happened in the courts. The Employment Relations Authority decided that the person in question was a contractor. When the same case went to the Employment Court the court said that no that person was an employee. Then when the matter went to the Court of Appeal there was a different decision again—a reinforcement that the person was a contractor—and then the Supreme Court decided that the person was an employee. So there we had four judicial bodies coming to two different conclusions. That in my view makes it absolutely plain to this Parliament that the law is not clear and that the right thing to do in the national interest is that we make the law clear with this bill. 
Members opposite have made all sorts of extravagant claims about Warner Bros and the like. But we know that really pulling the strings here are the Aussie unions. It is all very well for members opposite to stand up and make extravagant claims but we are acting in the national interest. I challenge members opposite to tell me who agrees with the description of Sir Peter Jackson—one of the great New Zealanders a man who has done so much for the film industry—as a spoilt brat a spoilt brat by the head of the Council of Trade Unions Helen Kelly. I ask which members opposite disagree with Helen Kelly. Not one! That speaks volumes about the differences in culture and values between this Government and members on the other side of the Chamber. Successful New Zealanders—those who are creating jobs wealth and opportunities for young people—are despised by people opposite and those members write off successful New Zealanders as spoilt brats. We on this side of the Chamber are proud to stand behind Sir Peter Jackson his success the jobs that he will create and the way in which he has successfully promoted our country. 
We have had arguments from members opposite that there should be absolutely no special treatment when defining contractors in employment law. That is what members opposite have argued. Well that is pretty interesting because in the very employment law that they passed they said that when it came to sharemilkers they would have a specific clause. When it came to real estate agents Labour said that no it would have a specific clause. My challenge to members opposite is to ask where their principles are. If there really are absolutes and if there should not be any definition that differentiates between different industries I ask why every member of Labour voted for an Employment Relations Act that specifically differentiates in working through the definitions of who is a contractor and who is an employee in relation to sharemilkers and an Act that also covers those in the real estate industry. 
I note another pathetic argument—and this was one that I really found entertaining. Damien O’Connor got to his feet and said it was absolutely disgraceful that when Warner Bros executives came to New Zealand they were transported by the Government’s cars: “Was that not awful? Did that not show us up?”. In the next speech Grant Robertson said that the Government’s real fault was that we had not had a $100000 booze-up function in Los Angeles to look after the executives. I would love for those members opposite to please explain the logic about why one of those actions is somehow immoral and one is right. 
The last point that I make is about what this issue goes to the core of in terms of some of the arguments about sovereignty. The real sovereignty argument here is whether we are going to allow New Zealanders’ jobs and opportunities to be held to ransom by an Aussie union. Just as the editorial in the  
Dominion Post  
says this morning this Government would not be doing anything in this space if it were not for the botched—the botched—union attempts to blackmail the production of  
The Hobbit  
in New Zealand. 
Grant Robertson 
: Oh! 
Kelvin Davis 
: Rubbish! 
Hon Dr NICK SMITH 
: Well if that is the case I ask what has changed. I ask the members who are chipping in whether they support the call by the Aussie actors’ union for a boycott on  
The Hobbit 
. They are silent. It is interesting that they have no view. In my view it was a disgraceful attempt by an Aussie union to disadvantage New Zealand’s most important film industry. I say that this bill that Kate Wilkinson has brought to this Chamber is about the national interest; it is about doing the right thing for New Zealand jobs and it is about doing the right thing for the New Zealand film industry. 
I will make one last point and it is this: members opposite think that the certainty argument does not matter. I would simply like to draw attention to another case before the courts with respect to IDEA Services. In this particular case people went into an employment relationship and the courts later said that the relationship had been misinterpreted. Both employees and the employer in the case of IDEA Services were working in the crucial area of providing support for New Zealanders who needed special care. The courts have come to a decision that will cost IDEA Services $500 million—$500 million. And that decision will change what everybody had thought. 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. I have two points. I know that it is unusual for an Opposition member to take issue with the width of debate but IHC New Zealand and the film industry are two quite different areas. Probably more important I think that as the member is aware this is a case on which a hearing is currently being held and a decision has not yet been issued. I think the Speaker Dr The Rt Hon Lockwood Smith has ruled on the matter pretty carefully recently. 
The CHAIRPERSON (Eric Roy) 
: On the first point this has been a much broader-ranging debate than I am comfortable with but I am not sure that there has been any greater transgression with the material that the Hon Dr Nick Smith has introduced than with that of some other members. On the second point about a matter before a hearing I am not aware of that matter but if in fact this matter is sub judice the member ought not to refer to the specifics of the case. 
Hon Dr NICK SMITH 
: My point is very clear. It is that uncertainty about employment law which down the track can result in hundreds of millions of dollars of cost is an investment killer. That is why this Parliament has a duty to provide certainty in employment law—certainty for employees certainty for employers—and that is exactly what the Minister is attempting to achieve. The legislation is in the national interest it is the right thing to do and if there is any skulduggery going on here it is in the way in which Aussie unions have tried to disrupt the growth of the very important New Zealand film industry. 
CAROL BEAUMONT (Labour) 
: 
 I will focus quite closely on clause 4 members will be pleased to know to look at what this clause is about and basically at what it says. This legislation is supposedly about clarification which is what the previous speaker Dr Nick Smith talked about. This clause is the substantive part of the Employment Relations (Film Production Work) Amendment Bill. 
The first question is whether there is a need to clarify. Although it was very interesting for the Hon Dr Nick Smith to go through the history on the matter the reality is that since 2005 with the Supreme Court decision in the Bryson case we have had settled law on this matter. There has not been a raft of other cases on the matter. There have not been a whole lot of people flip-flopping their status between independent contractor and employee which people might have been concerned about. That might have been an issue of uncertainty but it would appear that that has not been the case. Yesterday my colleague Charles Chauvel went quite carefully through the provisions of the Bryson case. He should know as he was one of the lawyers involved in the case. The court went through the matter and looked at a very clear set of tests to determine the real nature of the relationship. 
Here we have had a provision put forward in response to a dispute and a threat that  
The Hobbit  
would not be made in New Zealand but the actual issue in dispute was not the question of whether somebody was an independent contractor or an employee or any uncertainty over that matter. What the Hon Dr Nick Smith seems to have so much difficulty with is the idea that workers might try to improve their situation. In this case a group of independent contractors—actors and technicians—wanted to try to improve industry standards as independent contractors. They were not seeking to negotiate a collective employment agreement as employees; they were seeking to collectively negotiate over industry standards. It is something they are perfectly entitled to do—and is something that has previously been done with the Pink Book—and an agreement was reached that that was exactly what would happen. 
When this dispute was resolved some time ago now and all of the parties were notified one party failed to recognise that there was a resolution. The party that failed to recognise that any questions around banning anything had been lifted and the party that was actually deceptive in all of this was Warner Bros. It suited the Government for that to be the case so that it could keep up the hype on all of this. The reality was that the actual issue was resolved. 
This is a different issue. I ask why this bill is looking at the meaning of the word “employee”. Clause 4 raises the issue of the meaning of “employee” and talks about it in relation to film production. Clause 4 talks about who is not covered by the term “employee” in a new section 6(1)(d) to be inserted in the Employment Relations Act. It states: “(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: [or] (ii) a person engaged in film production work in any other capacity.” That covers the rest of the people in film production. It goes on to talk about pre-production work and post-production work. So this clause potentially includes everybody: the cleaner the person answering the phones and all of the range of people involved in film production work including the production of film or video games. 
Hon Trevor Mallard 
: Hairdresser? 
CAROL BEAUMONT 
: Yes it includes hairdressers and all sorts of people. 
The reality is that the bill talks about those people and it creates effectively a default situation. It says that those people “are independent contractors unless …”. This of course is the area where the Minister has got into a little bit of trouble over the wording about when those people might be employees. My colleague Charles Chauvel went through that area yesterday and explained that potentially this bill could create even more uncertainty. We could go from a situation of having settled law to a situation of having more uncertainty. The Minister has responded—all credit to her—by putting forward an amendment to try to pick up the point that Charles Chauvel made; she recognised it was a legitimate point. 
That takes me to my next issue about putting a clause like clause 4 into a bill like this. If the Government is serious and believes there is uncertainty then getting it right is important. The worst possible outcome would be to introduce a bill that actually creates less certainty which is what I am worried about. 
The CHAIRPERSON (Eric Roy) 
: Before the next member speaks I draw the Committee’s attention to a matter that occurred while Nick Smith was speaking; I did not want to interrupt him. The Standing Orders and Speaker’s rulings are quite clear on visual aids. During the speech of a member of the Government visual aids were displayed from the other side of the Chamber. They are to be displayed only when members on that side of the Chamber are speaking. We will not have a repeat of that. 
Hon TAU HENARE (National) 
: 
 Thank you for that assistance Mr Chairperson. In this debate I am reminded of the old communist days when the Iron Curtain was shut down on most of Europe and a few other nations that most of those members have visited in their prime. The most interesting thing is that the blacklist the boycott that was promulgated by the unions the Council of Trade Unions— 
Hon Trevor Mallard 
: “Dat”? 
Hon TAU HENARE 
: Scab? No no. The boycott was promulgated by none other than the Australian unions in partnership I suppose with Helen Kelly. That destroyed a word that those members love to get on their hind legs about: “trust”. The boycott ruined the industry trust. Gerry Brownlee John Key Nick Smith and the rest of the crew from New Zealand are trying to work up that trust again because it has been so damaged. So a bit of clarity was needed a bit of clear thinking about who is an employee and who is an independent contractor. As I am a poor old fulla from Otara from South Auckland explaining it to me would be something like this: if someone signs on as an independent contractor then that is what they are; if someone signs on as an employee that is what they are. That is all this bill does. After four court appearances—the courts could not get it right after the first one the second one or the third one—there was no clarity. I am not picking which court was right or wrong. But the fact of the matter is that now there is clarity. Now the employee has their rights and the independent contractor has their rights. 
I will let the Committee know something else about my colourful career. I can proudly say that in the early 1980s—members can cast their minds back if they will—I acted alongside Jodie Foster and John Lithgow as an extra in a movie that was filmed in Auckland. 
Hon Dr Nick Smith 
: I’m sure it was a big hit. 
Hon TAU HENARE 
: It was a huge hit. It did not come out on video for a while but it was called  
Mesmerized 
. I tell members that it was the easiest $280 I made in a long long time—$280 in the hand and all I had to do was walk from point A to point B. 
Grant Robertson 
: How many takes? 
Hon TAU HENARE 
: One take. It was all over in 10 minutes. Looking back on that huge career move of mine I was glad that at the end of the day I could be paid. I could put milk in the fridge and butter and bread on the table for my flatmates and boy I was happy. This industry is worth $2.8 billion to this country at least—a conservative estimate. The people who will reap the rewards of what we do today are workers in this country—workers whom members on that side of the Chamber said they thought they were always there for. Well if they were there for them they would have supported this bill yesterday not taken this Parliament well into Friday and well into the constituency work that many members of Parliament have to do on a Friday and on a Saturday as well. 
I am a great supporter of industry and workers in this country. 
Hon Trevor Mallard 
: Hands out of your pocket when you’re talking. 
Hon TAU HENARE 
: No no. I have a pocket and all I have in it is a couple of Lotto tickets. I tell members that if we had not done what we are doing today such tickets would have been the only thing that the workers whom Labour members say they support could rely on. But now workers have some clarity and they have a clear distinction between what an employee is and what an independent contractor is. As I said earlier they need to make the choice. Why is it that Labour members feel it is necessary to tell workers what to do? Why is it necessary for them always to get up and say that the workers deserve this that and the other thing; and that the workers believe this that and the other thing? Why is it that thousands of workers thousands of workers in this industry marched up and down this nation— 
Hon Dr Wayne Mapp 
: On Labour Day. 
Hon TAU HENARE 
: —on Labour Day? They did that on Labour Day. It was supposed to be a day in thanks for the 8-hour day. 
Hon Dr Wayne Mapp 
: They wanted work. 
Hon TAU HENARE 
: They wanted work and they would not have been allowed to work if this dispute had kept on. If Warner Bros had not been allowed in this country which is what members on that side of the Chamber wanted in the end then there would have been no work for the many people out there. It is not just actors. With one actor there are hundreds—more—people employed in the industry; there are hundreds and hundreds. The bigger the film the more people involved. 
Hon Trevor Mallard 
: Not necessarily. 
Hon TAU HENARE 
: Not necessarily but members know what I am talking about. Thousands and thousands of people rely on the work that comes not only from the big films but from the small films as well. Labour wanted to take away that right. All we are doing is making it clear for those people. 
Hon Steve Chadwick 
: Rubbish! 
Hon TAU HENARE 
: It is pretty apparent that we are not making it clear for Labour members because they still do not understand. Trevor Mallard is the lead speaker on that side. 
Grant Robertson 
: He is the spokesperson on labour Tau. 
Hon TAU HENARE 
: Yes. He took 10 minutes—a 10-minute speech two calls—and 7½ minutes was just personal abuse. It was personal abuse. There was no mention of the definition of “employee” and no mention of the definition of “independent contractor”. No he did not worry about that. The fact of the matter is that if workers sign on as employees that is what they are. If they sign on as independent contractors that is what they are. They start they finish end of story. What is so terrible about that? Who knows? That is why we are here. We are making sure that that is clear. We are making sure it is clear for the industry workers and everybody else. 
KEITH LOCKE (Green) 
: 
 I think the fact that the Minister of Labour has had to put forward two amendments shows the problem of rushing this bill through in urgency. I sat on the Transport and Industrial Relations Committee for periods when it considered the employment relations legislation. I have been considering the amendments to the Employment Relations Act that have been before the Transport and Industrial Relations Committee and the amendments to the Holidays Act. As with every select committee we have made changes to the legislation. One of the reasons why we do not just rush a bill through in urgency when it is available only at the beginning of debate is that otherwise a bill has to be available for 3 days so that people can have a look at it and get an idea of what might be wrong with it then in the select committee MPs can work out what might be wrong with it and they can take public submissions. All of that is necessary to get good legislation. Even with this very short bill Kate Wilkinson has come up with two amendments in the middle of this very rapid debate. 
Hon Ruth Dyson 
: Corrections. 
KEITH LOCKE 
: “Corrections” the member calls them. But no doubt there are more. 
What is this bill all about? There have been arguments about where the reason for it came from. The reality is that John Key and Kate Wilkinson said that they were open to talking with Warner Bros and Warner Bros wanted to talk to them so why would they not listen to its views? They then came forward with this bill. John Key said pretty explicitly that changing the legislation was part of the deal with Warner Bros. I do not disagree with Kate Wilkinson talking to anyone including Warner Bros. She can talk to anyone in the world; that is her right. But when a bill comes before this Parliament and it is based on talks with only one party that party being Warner Bros a multinational and everyone else—employers unionists political parties community people and any others in New Zealand—is shut out of that discussion before the bill comes to the House I am concerned. That is an abuse of democracy. If you talk only to a multinational and to no one else and you do what that multinational wants you are in effect— 
The CHAIRPERSON (Lindsay Tisch) 
: You are using “you”. 
KEITH LOCKE 
: One of the problems with the bill and the amendments in clause 4 which amend section 6(1) of the Employment Relations Act is that they cover anyone working in any way in the film industry. It lists voice-over actors stand-ins etc. and section 6(1)(d)(ii) states “a person engaged in film production work in any other capacity.” The bill talks further about pre-production work production work and post-production work on or off the set etc. So we can see an example of someone who might be hired to work for 8 hours straight a normal day every day just sweeping the floors in a particular production studio. In every respect in terms of the Employment Relations Act and in terms of the court decision in the Bryson case for that person and the work that they do—they do what they are told they are unskilled they sweep floors it is regular hours—everything is covered as normal. Under this bill the company could say that if someone wants a job sweeping floors that person has to be an independent contractor. If they do not accept that requirement in the contract then they do not get a job there and the company will get someone else to sweep the floor. Is it not absurd that someone who in no way is an independent contractor in substance under this bill can be defined as one and effectively lose all rights to defend their conditions and the right to work with others to improve their conditions—the normal things that unions provide for? That is where it becomes highly unjust. 
Once we put this exception for all film workers including people sweeping the floor in legislation like this as Heather Roy I think said in her speech why not generalise it to everyone? As it is the employers who can determine who signs the contract and in which form because they are the people who hand out the jobs this means we have an un-unionised workforce in New Zealand. Really that is what this is all about: de-unionising labour in New Zealand. Is that in the national interest? I think that Nick Smith said it was all about the national interest. Is it in the national interest? 
Dr CAM CALDER (National) 
: 
 It is a huge pleasure to rise and talk about clause 4 of the Employment Relations (Film Production Work) Amendment Bill which clarifies a very important point. It clarifies a relationship. The lack of clarity on this relationship has affected and threatened the health and viability of an industry worth something like $2.8 billion to our country—$2.8 billion. It is not just about the skills in cinematography video digital sound and other technologies associated with this film but also about tourism. The worth of this industry is huge to our country. 
This Government is acting decisively to ensure the continued health of this vital part of our economy and safeguard the jobs of thousands of New Zealanders. For this reason I find it absolutely amazing to hear from the Opposition benches some of the stories that we have heard and some of the reasons they are putting forward to oppose this initiative. While we are considering relationships let us consider the relationship between those members opposite and the unions. They seem to be demonstrating once again their thraldom; the members opposite are dancing like puppets to the union tune and who is the Geppetto? 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. Did you hear what the member just said? 
The CHAIRPERSON (Lindsay Tisch) 
: No. 
Hon Trevor Mallard 
: I do not know whether I should repeat it. I think the member knows it is out of order and he should withdraw and apologise. 
The CHAIRPERSON (Lindsay Tisch) 
: If the member has made an inappropriate remark I ask him to withdraw the remark. 
Dr CAM CALDER 
: What is— 
The CHAIRPERSON (Lindsay Tisch) 
: Did the member make an inappropriate remark? 
Dr CAM CALDER 
: Point of clarification Mr Chairman. What is the inappropriate remark? 
The CHAIRPERSON (Lindsay Tisch) 
: There is a point of order that an inappropriate remark was made. I did not hear it but if the member made one—that is why I am asking— 
Dr CAM CALDER 
: I withdraw. Who is the Geppetto? 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. The member is continuing the same theme. He has already withdrawn the original comment but this whole line—that members are moving in other members’ directions— 
The CHAIRPERSON (Lindsay Tisch) 
: Thank you. The member has just apologised and withdrawn the comment. Do not do it again. 
Dr CAM CALDER 
: Thank you for that point of clarification Mr Chair. 
We talked about the possible influence of union presidents: possibly the Amalgamated Engineering Printing and Manufacturing Union’s new president Andrew Little and possibly the Council of Trade Unions president Helen Kelly. I stress that it is “Helen Kelly” not “Helen Keller” although it is Blind Week and I am proud to have made a donation to the cause. I suggest it is a case of the blind leading the blind. Union leaders and the Labour Party is a case of the blind leading the blind. At this point in time that could be any of those in Opposition who have spoken today. Given what they have been saying I will be keeping a close eye on their faces. 
I used to despair at the Labour Party; I have now given up all hope. How can Labour members stand in the Chamber arguing against a point of clarification that will save thousands of jobs in an industry that has brought benefits to our country? How can they do that? The film industry has brought huge collateral benefits in tourism and huge collateral benefits within the industry itself. The Labour Opposition is betraying the fact that it is still hidebound in ideology. A fresh idea is as rare as an Uzbek in the outback. 
We are talking about a simple point of clarification that has saved the health of an industry that is worth $2.8 billion to our country. Members opposite are railing against a simple point of clarification on whether somebody is an employee or a contractor. I have had the pleasure myself like the Hon “Tao” Henare— 
Hon Trevor Mallard 
: Who? It’s Tau. 
Dr CAM CALDER 
: —like the Hon Tau Henare of serving in the role of an extra in the film industry. I must say it was a great experience. I met some fascinating people and was well reimbursed for a day’s work. 
I contend that a simple point of clarification in this amendment bill is totally appropriate and will save our film industry. Thank you. 
GRANT ROBERTSON (Labour—Wellington Central) 
: 
 As ever it is a pleasure to follow a life member of Northshore Toastmasters Cam Calder although the club might withdraw his life membership after listening to that speech. It is good to see Government members actually taking some calls because they have not been taking many calls up until now. 
We have not yet heard a justification for clause 4. Tau Henare told us about his appearance in the film  
Mesmerized 
. The problem for us is that we had to sit through the sequel “ 
Dazed and Confused 
”. But we found out a little bit about the movie  
Mesmerized 
 which Tau Henare was in. The movie  
Mesmerized 
 is summarised as: “The ultimate price is paid for a young girl’s loss of innocence.” That is the movie Tau Henare was in. Fortunately we did not get a full— 
Hon Annette King 
: Was it a blue movie? 
GRANT ROBERTSON 
: Who knows? We did not get a full summation from Mr Henare about his role. He said it involved him going from point A to point B. That is all I will say. 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. Again I do so reluctantly. Discussions of dirty movies at this point I think are well out of order and although this matter was touched on by Tau Henare extending it in the way that my colleague is doing is I think inappropriate. 
The CHAIRPERSON (Lindsay Tisch) 
: I think the member has the message. 
GRANT ROBERTSON 
: Thank you very much Mr Chair. 
One of the things that Mr Henare and Cam Calder have just said is that this industry is worth $2.8 billion to New Zealand. That is right; it is a very significant industry for New Zealand. One hundred and twenty films were made during the term of the fifth Labour Government. We got in there and supported the growth of this industry. 
If members on the other side of the Chamber are serious about supporting the film industry why did Gerry Brownlee sit there and do nothing for 2 years when everyone else in Wellington knew that because of the problems that Warner Bros was having in Hollywood there was a risk about the 
 Hobbit 
 film. He stood up on the other side of the Chamber and said the Labour Party likes just going to the cocktail parties. No—what we did when we were in office was to keep a relationship going with Warner Bros. That is the issue here today. That is really the reasoning behind this legislation. It is a fact that this Government let the relationship with Warner Bros slide ended up in a crisis and then opportunistically out of that crisis put forward the legislation that is before us today. That is why we are here. 
We are told by Tau Henare that the specifics of clause 4 are a simple matter. If one is a contractor one is contractor; if one is an employee one is an employee. But it is not as simple as that. Sometimes when people come in and sign up to be a contractor they do that because they want that position. They want that job; they want that work. But what happens over time—as it did for Mr Bryson in the case we have been talking about today—when things change when the nature of the relationship evolves? Why should Mr Bryson not then become eligible for all of the protections that would come from being an employee? 
The Supreme Court said that if there was a change in the way that an employment relationship develops then that is a legitimate thing to bear in mind. Things do not remain completely static in every employment relationship. So that is why— 
Hon Dr Wayne Mapp 
: They should then renegotiate. 
GRANT ROBERTSON 
: The point I say to Dr Mapp is that the certainty was there. The case was done in 2005. Gerry Brownlee keeps talking about this urgent matter this festering sore but  
Avatar 
 has been made since then. Lots of movies have been made since then. The situation was absolutely settled in law. This legislation is a complete fiction. 
Hon Dr Wayne Mapp 
: The word “boycott” changed things. 
GRANT ROBERTSON 
: Dr Mapp mentions the boycott. The boycott was over I tell Dr Mapp. Everybody knows that. Everybody knows that the boycott was over yet this Government has opportunistically brought in this legislation to carry on its attacks on the workers of New Zealanders because the Government knows— 
Hon Dr Wayne Mapp 
: Fiction. 
GRANT ROBERTSON 
: What were the thousands of people saying outside Parliament last week? They know that this Government is attacking workers’ rights in New Zealand. The 90-day bill extension is an example. 
That is why we on this side of the Chamber do not have trust and confidence that this legislation is not the beginning of a wider set of employment law changes around the status of contractors. Why could this not end up being extended beyond the film industry? It is already extended in clause 4 to the video game industry. When did the video game industry ask to be part of this? Why is the cleaner at two of the really successful video game - making companies in Wellington suddenly brought under this sets of rules? No one on the Government benches has explained how the video game industry came to be caught up in this. 
This is shambolic legislation. If the Government was true to its word it would have been referred to a select committee. It has not and this law should not proceed. 
Hon Dr WAYNE MAPP (Minister of Defence) 
: 
 Mr Chair— 
Hon Trevor Mallard 
: He couldn’t even get into the law school at a polytech—an assistant lecturer of commercial law. 
Hon Dr WAYNE MAPP 
: I say if Opposition members wish to interject they could at least get their facts right for a change. Does that not tell us everything? Right from the get-go Mr Mallard amongst others is consistent in that he simply cannot get the facts correct. There are other ways of describing that but to do so would almost certainly be unparliamentary. 
It is extraordinary to listen—and I have been listening throughout the morning both in my office and in the Chamber—to the nature of the Opposition’s speeches on the Employment Relations (Film Production Work) Amendment Bill. I will pick up on a particular point made by Mr Robertson. He said that the law is certain. It is true that there is a Supreme Court decision and to the extent that Supreme Court decisions are final I guess in that sense it is certain. But the Supreme Court identified the core problem. This is what it said in paragraph 15 of the  
Bryson v Three Foot Six 
 decision: “In the film industry services of the relevant kind were virtually always provided pursuant to contracts for services.” What does that mean? That means the normal pattern is to be an independent contractor. That is the problem with the Three Foot Six decision. The court knew that was the normal pattern but it then had to take cognisance of the Employment Relations Act 2000 in particular section 6(3) which states: “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 … that describes the nature of their relationship.” 
The problem is that the legislation leads to uncertainty. That is why at each level of the cases that were heard the Employment Relations Authority the Employment Court the Court of Appeal and ultimately the Supreme Court came to a different decision. The legislation leads to that outcome. The contrast with the legislation we are putting up is that there is certainty. Certainty will be given by simply having reference to the written contract. The written contract will determine absolutely the outcome. If a contract says in writing: “an employment agreement” that is what it will be. If a contract says in writing: “an independent contract agreement” that is what it will be. It is hard to be clearer than that. It is a completely different approach to Labour’s understanding of section 6(3) in the Employment Relations Act which is essentially a subjective test. It is not objective; an objective test would be to ask: “What was the party’s intention expressed in writing?” It could not be clearer than that. That is why the Employment Relations (Film Production Work) Amendment Bill is necessary. 
I have been listening to people say that there had not been problems with  
Avatar  
and so on—of course in a sense that is true. There was something that changed however and that was the destruction of trust. My colleague the Hon Tau Henare referred to that specific point. The Opposition can say that is all irrelevant the boycott was withdrawn and many films have been made since the  
Bryson v Three Foot Six 
 decision. But the world changed when the nuclear option was used. I use those words because Sir Peter Jackson used them. He said that option was made even before any communication with him. That boycott destroyed trust and that trust has not been restored simply by withdrawing the boycott. That did not change the issue of trust. In fact it indicated the question was whether someone would not just pull astray down the track halfway through production or near the end of production notwithstanding what they had said before. That is the problem when one destroys trust; one removes the fundamentals of reliability and certainty from the industry. Part of the package is that producing certainty in the law became an imperative a necessity to ensure that the work could be done in New Zealand and so that everyone involved knew the score whether one was an employee or a contractor. 
There is a very clear choice a very clear choice. Is one willing to take the practical pragmatic and necessary steps to ensure the survival of the big-budget film industry in New Zealand? National is clear on that choice. We are prepared to take those practical steps. It is not enough to just go out and say that we support the film industry; one has to be prepared to take the practical measures that will ensure that outcome. When that test came before this Government we made sure that the outcome was clear. There are thousands of people especially in this city whose livelihoods are dependent on the pragmatic practical decision being taken. The other side I guess partly from the luxury of being the Opposition to be fair and largely because the Opposition members are heavily influenced by their relationship with unions and their personal relationships with members of unions have indulged in the luxury of saying that they do not have to be practical and they will retreat to an ideological position. I ask the Labour Party this: if the situation had been reversed would it have taken the practical step or would it have let ideology get in the way and see a $2.8 billion - industry go down the drain? National was not prepared to take that risk. We have taken the measures. The Opposition have let an ideologically driven point of view blind them to the reality that faced this country over the last 4 weeks. 
The CHAIRPERSON (Lindsay Tisch) 
: The first typescript amendment in the name of the Hon Trevor Mallard to new paragraph (d) of clause 4 to omit “excludes” and substitute “includes unless their employment agreement expressly provides otherwise” in relation to the definition of employees in film production is out of order as being inconsistent with the principles and objects of the bill as—[ 
Interruption 
]—I am ruling—stated in Standing Order 292(1). 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 4 be agreed to: 
to add the following subparagraph to section 6(1) in subclause (1): 
“(e) paragraph (d) expires on the close of 8 November 2010.” 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Noes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 4 be agreed to: 
to add the following subclause: 
(5)This section expires on the close of 8 November 2010. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Noes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendments in the name of the Hon Kate Wilkinson to clause 4 be agreed to: 
to omit “an” from new subsection (1A) in subclause (2) and substitute “a written”; and 
to omit from paragraph (a)(v) of the definition of  
film production work 
 in subclause (3) “subparagraph (i)” and substitute “subparagraphs (i) to (iv)”. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Noes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Amendments agreed to. 
A party vote was called for on the question  
That clause 4 as amended be agreed to. 
Ayes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Noes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Clause 4 as amended agreed to. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 Following some discussions with the Leader of the House I seek the leave of the House for us to consider new clauses 5 to 9 as one question with one vote. The reason for doing that is they are a logical group and they stand or fall together. It is likely that if clause 5 fails they will all be knocked over anyway. 
The CHAIRPERSON (Lindsay Tisch) 
: Leave is sought for that purpose. Is there any objection? There is no objection. 
New clauses 5 to 9 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 This group of clauses is designed to put in the Employment Relations (Film Production Work) Amendment Bill a review of it. I think the view on this side of the Chamber is that the legislation is unlikely to work and these amendments provide a method of establishing whether it has been working. I want to make it clear to members that this set of clauses has been picked up from the prostitution law reform legislation. The clauses have been changed with a couple of amendments. 
I will say in a slightly embarrassed way that when I looked at my drafts of these amendments the word “prostitution” still appeared in one of them rather than “film”. It reminded me of my favourite movie  
Notting Hill 
. I do not know whether people will remember the Julia Roberts scene in the restaurant where boorish people got actors and prostitutes mixed up. I want to say that in my case it was not deliberate; I would certainly not describe Julia Roberts in that way. I have seen that movie many many times and it is one of my favourites. 
But there is not much doubt on this side of the Chamber that there needs to be a review arrangement for this very bad legislation and these amendments are our attempt to put it in place. 
The question was put that the following amendment in the name of the Hon Trevor Mallard be agreed to: 
to add the following clauses: 
5Review of operation of Act and related matters 
(1)The Employment Relations (Film Production Work) Law Review Committee must— 
(a)as soon as practicable after the commencement of this Act— 
(i)assess the number of persons working as film production workers in New Zealand and any prescribed matters relating to film production work; and 
(ii)report on its findings to the Minister of Labour; and 
(b)no sooner than the expiry of 3 years but before the expiry of 5 years after the commencement of this Act— 
(i)review the operation of this Act since its commencement; and 
(ii)assess the impact of this Act on the number of persons working as film production workers in New Zealand and any prescribed matters relating to film production work; and 
(iii)consider whether any amendments to this Act or any other law are necessary or desirable; and 
(iv)consider whether any further review or assessment of the matters set out in this paragraph is necessary or desirable; and 
(v)report on its findings to the Minister of Labour; and  
(c)carry out any other review assessment and reporting required by regulations made under this Act. 
(2)The Minister of Labour must present a copy of any report provided under this section to the House of Representatives as soon as is practicable after receiving it. 
6Employment Relations (Film Production Work) Law Review Committee 
(1)The Employment Relations (Film Production Work) Law Review Committee must consist of 11 members appointed by the Minister of Labour. 
(2)The Minister of Labour must appoint— 
(a)2 persons nominated by the Minister of Labour; and  
(b)4 persons nominated by the New Zealand Council of Trade Unions (or if there is no New Zealand Council of Trade Unions by the union registered under Part 4 of the Employment Relations Act 2002 that the Minister of Labour considers represents the interests of the largest number of New Zealand workers); and 
(c)1 person nominated by the Minister of Women’s Affairs; and 
(d)1 person nominated by the Minister of Maori Affairs; and 
(e)1 person nominated by the Minister of Youth Affairs. 
(3)The Minister of Labour may on the recommendation of a member’s nominator remove a member from office for inability to perform the members’ duties misconduct by the member or any other just cause proved to the satisfaction of the nominator. 
(4)The member is not entitled to compensation or other payment relating to removal from office. 
(5)The Employment Relations (Film Production Work) Law Review Committee ceases to exist on a date appointed by the Minister of Labour by notice in the  
Gazette 
 that is after the date of its report to the Minister under section 42(1)(b)(vii). 
7Other provisions on appointment removal term and resignation of members of Employment Relations (Film Production Work) Law Review Committee 
(1)A member must be appointed or removed by written notice to the member and his or her nominator. 
(2)A member holds office for a term stated in that notice of up to 5 years. 
(3)A member whose term of office expires continues to hold office until he or she is reappointed or his or her successor is appointed. 
(4)However all members cease to hold office on the date on which the Employment Relations (Film Production Work) Law Review Committee ceases to exist. 
(5)A person may be reappointed as a member. 
(6)A member may resign by written notice to the Minister of Labour and his or her nominator. 
(7)The powers of the Employment Relations (Film Production Work) Law Review Committee are not affected by any vacancy in its membership. 
8Remuneration of members of Employment Relations (Film Production Work) Law Review Committee 
(1)A member is entitled to receive remuneration by way of fees salary or allowances and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951 (and the provisions of that Act apply as if the Employment Relations (Film Production Work) Law Review Committee were a statutory Board under that Act). 
(2)That remuneration must be paid out of the departmental bank account operated by the Department of Labour. 
(3)This section does not apply to a person who is a member in his or her capacity as an employee of a department. 
9Procedure of Employment Relations (Film Production Work) Law Review Committee  
The Employment Relations (Film Production Work) Law Review Committee may regulate its own procedure. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Noes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Amendment not agreed to. 
Bill reported with amendment. 
The CHAIRPERSON (Lindsay Tisch) 
: I move  
That the report be adopted 
. 
A party vote was called for on the question  
That the report be adopted. 
Ayes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Noes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Report adopted.