Locke Keith: Employment Relations (Film Production Work) Amendment Bill — First Reading Second Reading In Committee 
Locke Keith: Employment Relations (Film Production Work) Amendment Bill — First Reading Second Reading In Committee 
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KEITH LOCKE (Green) 
: 
 The Green Party is strongly opposed to the Employment Relations (Film Production Work) Amendment Bill. This is a very sad day for New Zealand because not only is the Government moving legislation through this Parliament at the behest of a foreign multinational Warner Bros which is an affront to our sovereignty but also it is completely abusing the parliamentary process. It is rushing important industrial legislation through Parliament through all stages in a few hours under urgency and is denying all chance for the legal profession employers union leaders and members of the community to make submissions on it. In fact members of Parliament have had only a couple of hours in which to look at the bill and prepare their contributions. 
Any other bill sits on the Table for 3 days which means that members of the public including those following this debate have the chance to figure out what the bill is before we discuss it in the House. There will be a lot of confusion out there among the people listening to this debate on the radio or watching it on TV. MPs are not being given a proper chance to scrutinise this legislation. 
Industrial legislation is very tricky and complicated legislation. In the Transport and Industrial Relations Committee this morning we finalised a couple of bills: the Holidays Amendment Bill and the Employment Relations Amendment Bill (No 2). Those bills have been around for months. We received many submissions on them we had many debates on them including debates on interpretation and they were quite divisive in many respects. That shows the complexity of industrial law and it is quite wrong to rush such law through Parliament. That is particularly so given that Gerry Brownlee said when I questioned him earlier today that Warner Bros has not said that this bill needs to go through this week. Well why are we pushing it through this week? Either there is some misinformation there or we could have a proper select committee process on this bill. 
What is the problem with having a proper select committee process? The Minister of Labour said that the bill does not really change anything and that we are just creating some certainty. I think Gerry Brownlee had a slightly different interpretation. This bill produces more uncertainty in our industrial relations law because the concept behind this bill is quite different from the concept behind the rest of the Employment Relations Act. That concept was clarified in the 2005 Supreme Court decision of  
Bryson v Three Foot Six 
 which defined what an employee is. That decision was codified and explained by the screen producers organisation the Screen Production and Development Association of New Zealand or SPADA which produced a little document on what it would mean. 
Essentially the Screen Production and Development Association explained what we would call the duck test—that is if something walks like a duck swims like a duck and quacks like a duck then it is a duck. In this case the association laid out things such as the control that actors have over their work situation where it happens what is done and the timing of it etc. In reality a lot of those things are under the control of the director so in that sense independent contractors are similar to employees. Another test the association outlines is the extent to which workers when going into this job provide their own equipment take financial risks related to the production and so on and generally actors do not do that. So there are a lot of parallels with the work that actors actually do in being employees. 
This bill goes completely in the opposite direction from the duck test. It says that when the employer or the film producers and the actors or people in the film industry in general sign a contract what they say in that contract—whether the actor is an independent contractor or an employee—is what determines rights from there on. That is quite contrary to the general theme of the Employment Relations Act. Where that puts actors at a disadvantage is that now employers know that under this arrangement they do not need to give actors the right to collective bargaining. They will say that if actors want to be in their movie they will give them a contract that says they are independent contractors and not employees and that they can take it or leave it. If they do not take it they do not get the job on the film. 
That will mean that these people then lose all rights to collective bargaining in relation to their employer—the film company—and that of course is a big problem. It will provide a feast of work for lawyers and judges in the future who will bring back that Supreme Court decision and look at it as it applies to the Employment Relations Act as a whole. They will say that this amendment is in conflict with that Act and they will ask whether such a person is an independent contractor or an employee and they will ask what that person’s rights are. It will be a legal feast. That is why we need to take submissions on this bill rather than just rushing it through. 
There is a whole history of people like actors bringing their skills and labour to a short-term work situation or a fixed contract. For example many people in the construction industry get a job on a building for a fixed period of time. They are paid certain amounts and even though they are contractors contracting for that work they retain rights similar to the rights of employees under the Employment Relations Act. It is also good for the film industry to give film workers and actors more rights. In my experience the more rights that people have the more confident they feel and I think confidence is a big thing in the acting profession. If actors are kicked around and denied their rights then their work will suffer and the film will suffer. 
All of us here—every New Zealander I think—wants  
The Hobbit 
 to be a success. This debate has never been about whether  
The Hobbit  
should be produced here. Everyone wanted it to be produced directed and made in New Zealand. We in the Green Party are saying that it would be a more successful film if the rights of actors and film workers in general were respected and not undermined in this way. I agree with previous speakers. Sometimes over the years we have talked about banana republics and Governments that have been— 
Hon Ruth Dyson 
: Banana constitutional monarchy. 
KEITH LOCKE 
: I agree with the interjection. We are not even a banana republic; we are a banana constitutional monarchy. So we have a couple of things on our hands here. 
The term “banana republic” was originally used as a reference to countries in Central America in particular whose dominant industry was bananas. The big banana companies like United Fruit in earlier times or Del Monte would essentially run the State because they had such a big weight in the economy. Now we see that New Zealand a developed and multifaceted economy is acting in the way of the banana republics. 
Warner Bros comes along and says: “We’re not going to make this film here unless you give us more money and change your industrial laws to suit us and bow and scrape.” So we forget about our sovereignty and forget about our honour. Do we not have honour as a people? We can just say: “Yes sir no sir.” and then pretend it is all for the good of the workers concerned. In fact if we study the Employment Relations Act we see that it does not have any good spin-offs for this bill. This bill is in contradiction to the Employment Relations Act and the Green Party is very opposed to it. Thank you.