Mapp Wayne: Employment Relations (Film Production Work) Amendment Bill — In Committee 
Mapp Wayne: Employment Relations (Film Production Work) Amendment Bill — In Committee 
[Volume:668;Page:15036] 
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  
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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.”