Chauvel Charles: Employment Relations (Film Production Work) Amendment Bill — Third Reading 
Chauvel Charles: Employment Relations (Film Production Work) Amendment Bill — Third Reading 
[Volume:668;Page:15053] 
CHARLES CHAUVEL (Labour) 
: 
 On 16 June 2005 the Supreme Court delivered reasons for its judgment in the  
Bryson v Three Foot Six 
 appeal. The court on that occasion comprised five of New Zealand’s leading jurists including the Chief Justice and a judge who is now a member of the International Court of Justice. The court heard submissions from the parties as well as from Business New Zealand and the New Zealand Council of Trade Unions as interveners. It was one of the last appeals that I had a role in arguing before I came to this House.  
I can assure every member here that the case was fully argued as the 20-page judgment from Justice Blanchard indicates. There is proof of the soundness of the decision of the court in the fact that the Bryson 
case was the last appeal 5½ years ago to have been heard on the question of how to resolve whether a workplace relationship is one of employee or contractor. The law reports do not contain another such case. The appeal settled the proposition that the law that has characterised an employment relationship at least for the past century in this country was unchanged by the Employment Relations Act. The law is this: all the attributes of the employment relationship have to be considered not just the label attached to it by one or the other of the parties whether at the start of the relationship or at some point while it is on foot. 
This law has served us well. When I was in legal practice my international employer clients especially those from the US Europe or Australia were generally struck by the flexibility that New Zealand law gave them in being able to set up business arrangements here. All that is needed is to take care to properly and honestly document the relationship at the outset. 
The background that I have just described makes this amendment all the more outrageous even before we consider the circumstances of its introduction. The lack of a basic understanding of the law that we have heard exhibited by Government speakers including the Minister of Labour just makes it worse. This amendment deprives workers in the film industry of the right to bargain collectively by specifying that they should always be treated as contractors. But then it goes on to undermine that primary provision by specifying that if a worker is a party to an employment agreement then he or she shall instead be an employee. Thanks to a further amendment tabled by the Minister last night any such employment agreement must be in writing. 
The first point is that there is no need for this amendment. As I said earlier the Supreme Court settled the law in this area 5½ years ago. There has been no litigation since because it is clear that as long as the parties describe the relationship between them honestly and accurately at the outset no problem arises. 
More important this amendment will actually create uncertainty. The default position is that film workers will be contractors but if they wish to argue for the greater protections that employment status would give them—as they are heavily incentivised to do in the event of a dispute—workers whose status is arguable will invoke that proviso. They will say that they are employees. If they say they are employees what will they have to prove to the Employment Relations Authority? First they will have to prove that they are parties to an employment agreement. In order to do that they will have to show that the reality of the relationship is one of employment not of independence. In other words they will have to take the Employment Relations Authority through all of the tests that were traversed in the Bryson 
case. 
The Supreme Court settled that law 5½ years ago but here we have Parliament under the misguidance of the Minister reopening the issue and making many more Bryson-type cases more not less likely. In many cases thanks to industry practice those workers will win their argument that they are in fact employees. 
There is something worse than this. The Minister thinks that by specifying that any employment agreement has to be in writing she can fix the problem. Well she has not read the Bryson decision because in that case the court was very clear that very few employment relationships are comprehensively documented in one place. I ask what an employment agreement in writing is in terms of the Minister’s typed amendment. Is it a standard term sheet? Is it a letter of appointment? What about a written agreement that is labelled to be an employment agreement but that clearly documents an independent contracting relationship? The Minister’s amendment to her amendment actually raises many more questions than it solves. Again it will create much more not much less litigation potential. 
Section 6 of the Employment Relations Act is a very carefully drawn provision. What arrogance this Government showed yesterday in its attempt to amend that section. It introduced a clumsily worded amendment—which it has already had to amend once—thinking that without a select committee process or the nicety of a second reading speech from the Minister of Labour that was more than 5 minutes long the Government could adequately exempt the film industry from the operation of the Act. That attempt will not work and it is simply a recipe for further uncertainty and more litigation. It is the exact opposite of what John Key appears to have promised Warner Bros Peter Jackson and everybody else. 
We have a bad law achieving the reverse of what was intended being passed under a defective process by a Minister who is not on top of her brief. But as has been pointed out time and time again in this debate although these things are bad enough they are not the worst aspects of the work that the Government is forcing on Parliament today. The worst thing about this amendment is that it clearly comes at the behest of a Government that only 2 years into its term has just run out of ideas. Mining national parks did not work. Appropriating Canterbury’s water and turning the emissions trading scheme into a big subsidy for polluters may have led to lots more dairying but it has not delivered prosperity. So I ask what the Government has left to do but to give in to any multinational that asks for a labour standard to be diluted in return for some investment. 
Hon Annette King 
: And then balls it up. 
CHARLES CHAUVEL 
: And it cannot even do that right; that is right. I ask what will be offered up next. Will it be environment standards human rights norms or health and safety in employment law? What will be next on the bidding block we ask ourselves. 
I will pause for a moment to reflect on the path that this Government has begun to tread. Phil Goff when he was the trade Minister signed an agreement with China that is being implemented over 12 years. It records that China and New Zealand regard it as inappropriate to encourage trade or investment by weakening or failing to enforce labour laws. We have agreed with the Chinese not to weaken our labour laws. Well what a fine example we have set today for the implementation of the New Zealand - China Free Trade Agreement and what a great negotiating signal we are sending to the United States and others in the context of seeking agreements with them over our commitment not to arbitrage the terms and conditions of our workforce! 
People thought that they were choosing a brighter future under this Government. They thought that members opposite were ambitious for New Zealand. But once the euphoria of retaining  
The Hobbit 
 in New Zealand wears off and once all the union-bashing blood-lust dies away people will be pretty disappointed with what remains: a Government that has reduced New Zealand in the words of the  
Financial Times 
 today to the client status of an American film studio. People will realise that only under a Labour-led Government will Kiwis have any hope of owning their own future.