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:14955] 
CHARLES CHAUVEL (Labour) 
: 
 The first thing I want to say in this debate is that as a proud Wellington MP I am glad that it seems the  
Hobbit 
 movies will now be made in this city. I was glad that the  
Lord of the Rings 
 movies were made here. The investment in the city of money energy and the local talent that our local film industry was able to showcase made me really proud. The New Zealand landscapes displayed internationally through those movies married really well with the “100% Pure New Zealand” campaign that was run so effectively by Tourism New Zealand at the time. It is also great that a whole range of local businesses did well out of the films being made here. My own former law firm acted for one of the financiers of the films. I think it is useful to reflect on the fact that all of that happened under a Labour Government. I hope we will see similar benefits from the  
Hobbit 
 movies that we saw from the 
 Lord of the Rings 
 movies including a boost to our local film-making industry. 
But there is a big difference. The 
 Hobbit 
 movies thanks to the mismanagement that we have seen from the Government come at a great cost to this country one that New Zealand did not have to pay to have the 
 Lord of the Rings  
movies made here. The Government proposes to rush through under urgency in the House today and tomorrow all the stages of a completely unnecessary law change. There will be no select committee scrutiny of the legislation. There will be no public or expert submissions heard on it. There will be no advice from officials to members on the amendment. I want to explain to the House—to “read into the record” to quote the words used by the previous speaker the Attorney-General—why this amendment is unnecessary and undesirable. I hope Mr Flavell listens because I think his speech was an extraordinary example of how one can in advocating for something use reasons that undermine one’s advocacy for the position that one is taking. 
As Christopher Finlayson told the House I was a member of the legal team that acted for the Council of Trade Unions in the Supreme Court on the  
Bryson v Three Foot Six 
 litigation. I was really proud to accept the union’s instruction. The Minister seems to think that is not a matter of pride—to be available to one’s clients to take their brief. He should know as the leader of the legal profession that there is no more sacred duty on a lawyer than to do that when approached. I was glad to argue the case. There was fantastic argument in the Supreme Court and the Supreme Court listened carefully to the issues that were presented to it and dealt with the matter very carefully. 
Because we heard a complete mishmash of a summary from Gerry Brownlee as to what actually happened in the Bryson case it is useful to give the facts. In that case a model maker had worked variously for Weta Workshop and Three Foot Six Ltd. Three Foot Six was a company specifically established to administer the production of the  
Lord of the Rings  
movies. During the production of the movies Mr Bryson worked fixed hours: 7.30 or 8 a.m. to 6 or 6.30 p.m. with 45 minutes for a lunch break every day. He was part of a crew of 42 working similar fixed hours. He worked only for Weta Workship and for Three Foot Six. In his first few weeks he received on-the-job training in what he was supposed to do for Weta Workshop and he got an individual initial pay rate of $18 an hour. These are the classic indications in our law of the existence of an employment relationship. But 6 months into that relationship Mr Bryson in common with the rest of his crew was given a document by Three Foot Six referring to “contractor” and “independent contractor”. 
Those are the facts of that litigation. The long and the short of what the courts decided to do—[ 
Interruption 
] That is right 6 months into the relationship Three Foot Six proffered a document mis-describing the relationship as one of an independent nature rather than one of employment which it clearly was. And that was what the Supreme Court confirmed in the litigation. Despite Weta Workshop handing Mr Bryson a document describing him as a contractor he was clearly an employee by every test known to the common law and applied in this and every other common law country for over 100 years. The Supreme Court also confirmed that if the parties had bothered to clearly and correctly label their relationship from the outset New Zealand law would have provided the flexibility for them to choose whether to be in an employment or a contracting relationship. 
This bill will not actually fix anything. There has not been a flood of litigation since the Bryson case; in fact that case which is 5 years old is the last leading case on the question of how one determines in this country whether a person is an employee or a contractor. So much for the great doubt that is said to exist in our law on this point and that is said to be some sort of block on incoming foreign investment that we need so badly in this case that we will do anything including subvert the processes of this House to change the law in order to accommodate a foreign investor. 
But the problem with this legislation with the amendment proposed by the Minister of Labour will be apparent to any employment lawyer looking at its provisions. In any case where anyone asserts that they are in an employment relationship under the proviso in clause 4(2) the court will still have to undertake the very exercise that it undertook in the Bryson litigation. What the proviso says is that if there is an employment relationship or if the person complaining is a party to an employment relationship then they are not subject to the exclusion in the amendment; they will be subject to employment law. Well how does anybody determine whether a person is subject to an employment relationship? They go through the tests that the court had to go through in the Bryson case to determine whether an employment relationship exists. That is the recipe for litigation that the Minister is creating in this rushed and botched legislation. Far from creating some sort of certainty that is said to be sought here we are participating in the creation of massive uncertainty by unleashing on the courts and on the parties to litigation in these sorts of disputes the very sort of inquiry that the Minister thinks she will extinguish. As I say the courts will have to go through the mixed inquiry of fact and law to determine whether in any case an employment relationship exists. An employment contract does not have to be in writing as the Bryson case made very clear. The courts will have to go through the tests look at the reality of the relationship and determine whether in any case before them there is in fact such an employment relationship. 
So after this legislation has been rushed through the House every time there is a dispute in the film industry what will happen? A person will say “I am an employee. I am subject to an employment contract.” They will do that because it is cheaper to take a personal grievance than it is to take a commercial dispute through the ordinary courts. Then the courts or the employment relations authority will have to do exactly what they did in the Bryson case. This Minister through her inexperience her lack of knowledge of employment law and her failure to seek the most basic advice and follow the most basic process— 
Hon Members 
: Ha ha! 
CHARLES CHAUVEL 
: She and the members opposite think it is funny but they are about to put employers in this country through a major new series of employment litigation which has not been seen in this area for 5 years and which they will be responsible for resurrecting. We are tying ourselves up in knots we have sacrificed our sovereignty and we have thrown out due process all for an amendment that simply will not do what the Minister thinks it will.