Chauvel Charles: Employment Relations (Film Production Work) Amendment Bill — First Reading Second Reading In Committee 
Chauvel Charles: Employment Relations (Film Production Work) Amendment Bill — First Reading Second Reading In Committee 
[Volume:668;Page:14965] 
CHARLES CHAUVEL (Labour) 
: 
 Before the Minister of Labour came to Parliament she was a respected practitioner in a respected firm in Christchurch. So I hope she will take a moment to listen carefully to what I say. I repeat the caution I set out in my first reading speech which was that the Employment Relations (Film Production Work) Bill— 
Hon Tau Henare 
: That’s right I’m so bright! 
CHARLES CHAUVEL 
: The reason that Mr Henare might also want to listen is that he used to know something about industrial relations when he worked for a union. 
Hon Trevor Mallard 
: Before he was fired for bottling someone. 
CHARLES CHAUVEL 
: That is right—before he was fired. But he might want to have a listen just like his colleagues because the problem with this bill—despite all the union bashing from Mr Joyce and others and despite all the rhetoric—is that it does not do what National thinks it will do. It will have real and problematic consequences for this Government from its small and medium enterprise constituency and others if National allows this legislation to pass in its current form. All I am doing in this second reading speech is asking the Minister to consider with some care what I am saying. I am not motivated by any desire other than to see this Parliament get the law right and to not make fools of ourselves on this occasion. But I fear that if we pass the legislation in its current form as we appear likely to do that is exactly what we will do. 
The bill on its face provides that a film production worker as defined is to be excluded from the definition of “employee” under the Employment Relations Act. 
Hon Dr Wayne Mapp 
: Unless they choose otherwise. 
CHARLES CHAUVEL 
: Mr Mapp is right—unless they choose otherwise. A proviso deals with that in clause 4(2) of the amendment bill. Here is where the problem arises. The proviso is poorly drafted. It is poorly drafted and it will allow for a litigation bonanza if it is allowed to be maintained in its current form. I will repeat what I said in my first reading speech to describe why that is. The proviso applies employment law notwithstanding the principal provision in the amendment to a person who is “a party to or covered by an employment agreement that provides the person is an employee.” So the first problem is that it is a circular definition. 
The second problem and this is where the litigation bonanza will arise is that as soon as anything goes wrong in a workplace relationship—let us use the generic term—in the film industry after the passage of this legislation aggrieved parties will submit a personal grievance to the Employment Relations Authority and say that they should have the benefit of the proviso because they are subject to an employment agreement. They will do that because it is much cheaper as we know to pursue a personal grievance than it is to mount a commercial dispute through the Districts Courts or through the High Court. 
But how will they be able to do this? Well most people with some experience in employment law know a couple of basic things. Firstly an employment agreement need not be in writing. Nothing in this legislation—again despite the rhetoric we have heard from members opposite—will change that basic attribute of the law. Its existence and terms in any case are a mixed question of fact or law in the first instance for the Employment Relations Authority and thereafter for the courts to determine on appeal. 
How will they do this? How will the courts decide whether there is an employment relationship on foot that allows somebody to claim the benefit of the proviso? They will apply the tests that were applied in the Bryson case. The reason they will do that is those tests despite what Mr Mapp said have been applied by the common law courts to determine whether an employment relationship exists in any case for about the last 150 years across the common law world. Mr Mapp can shake his head as much as he likes but if he reads the Supreme Court decision he will see that much of the criticism that was directed at the Employment Court judge was that she was said to have erred in law by applying some new test to discover the existence of an employment relationship beyond what would have applied after 2000. She is said to have misapplied the TNT Express Worldwide case which was the leading case before Bryson. The Supreme Court said that there was actually no great difference in the tests. The law was not substantially altered on this point by the 2000 legislation. 
I was astounded to hear the Minister quote an actor from Christchurch saying that the Labour Government should have fixed the law on its watch. The fact is that this was the last piece of litigation that dealt with this question in New Zealand. Five years ago the law was settled by the Supreme Court in the Bryson case. The reason the law has not been touched since then is that it is settled. It is really clear. The tests that should be applied to determine whether an employment relationship or a contracting relationship exists in any case are clear and settled matters of law. 
We heard members opposite say that the law should be that if a label appears in a relationship—if somebody says they are a contractor or that someone is a contractor to them and they are that person’s principal—then that should be the end of it. What if the facts in Bryson apply? What if the relationship bears no resemblance to an independent one? What if it is clearly an employment relationship by law? Should we condone the sham? Should we participate in the lie? Should Parliament say that the party with the economic power can call it whatever it likes even 6 months into the relationship once it is well on foot and that will be an end to the inquiry? Is it saying that never mind whether the relationship is clearly something other than one of principal and contractor if the person in the relationship with the economic power wants to call it that of contractor then that should be the end of the inquiry? I do not think so. That will never be the law in this country because the common law courts will never apply the law in that way—they never have. I seriously doubt that unless this Parliament uses the clearest words which it is not doing on this occasion it ever will. 
Thanks to this amendment we will see more litigation not less. This is a major own goal on behalf of the Government and the Minister. I ask again that they reconsider the drafting and that they think about whether this sort of legislation ought to be rushed through under urgency. In rushing through legislation that she thinks will provide certainty in the film industry the Minister is opening up a whole new area of uncertainty. Parliament will be led tonight into sharing that error unless there is a rethink. It is caused by rushed drafting and because this amendment will not receive proper scrutiny. Unless there is a rethink it will be passed through all its stages in a matter of hours. There will be no select committee process. We will not hear from employment practitioners or Employment Court judges who sometimes take the time to submit on employment law reforms. I guess no one should be surprised by this. By my count this is the 42nd non-Budget piece of legislation since November 2008 to be the subject of the suspension of the Standing Orders. There is a reason that over the past 25 years we have bothered with the select committee process. People out there actually know more stuff about things than we do and sometimes it is a good idea to take their temperature on these matters. This is certainly one of those occasions. 
There is a final reason why our process today is so deplorable. If we put aside the bad drafting which could well have the opposite effect of what the Minister intends and if we put aside the poor process that is again being adopted here by this Parliament under this Government the problem is that we are doing it at the behest of a foreign corporate. Whatever happened to being ambitious for New Zealand? Whatever happened to choosing a brighter future? What about owning our future as a start? On that ground as well as the other two I have described this is a very sad day for New Zealand and for this Parliament.