Beaumont Carol: Employment Relations (Film Production Work) Amendment Bill — In Committee 
Beaumont Carol: Employment Relations (Film Production Work) Amendment Bill — In Committee 
[Volume:668;Page:15030] 
CAROL BEAUMONT (Labour) 
: 
 I will focus quite closely on clause 4 members will be pleased to know to look at what this clause is about and basically at what it says. This legislation is supposedly about clarification which is what the previous speaker Dr Nick Smith talked about. This clause is the substantive part of the Employment Relations (Film Production Work) Amendment Bill. 
The first question is whether there is a need to clarify. Although it was very interesting for the Hon Dr Nick Smith to go through the history on the matter the reality is that since 2005 with the Supreme Court decision in the Bryson case we have had settled law on this matter. There has not been a raft of other cases on the matter. There have not been a whole lot of people flip-flopping their status between independent contractor and employee which people might have been concerned about. That might have been an issue of uncertainty but it would appear that that has not been the case. Yesterday my colleague Charles Chauvel went quite carefully through the provisions of the Bryson case. He should know as he was one of the lawyers involved in the case. The court went through the matter and looked at a very clear set of tests to determine the real nature of the relationship. 
Here we have had a provision put forward in response to a dispute and a threat that  
The Hobbit  
would not be made in New Zealand but the actual issue in dispute was not the question of whether somebody was an independent contractor or an employee or any uncertainty over that matter. What the Hon Dr Nick Smith seems to have so much difficulty with is the idea that workers might try to improve their situation. In this case a group of independent contractors—actors and technicians—wanted to try to improve industry standards as independent contractors. They were not seeking to negotiate a collective employment agreement as employees; they were seeking to collectively negotiate over industry standards. It is something they are perfectly entitled to do—and is something that has previously been done with the Pink Book—and an agreement was reached that that was exactly what would happen. 
When this dispute was resolved some time ago now and all of the parties were notified one party failed to recognise that there was a resolution. The party that failed to recognise that any questions around banning anything had been lifted and the party that was actually deceptive in all of this was Warner Bros. It suited the Government for that to be the case so that it could keep up the hype on all of this. The reality was that the actual issue was resolved. 
This is a different issue. I ask why this bill is looking at the meaning of the word “employee”. Clause 4 raises the issue of the meaning of “employee” and talks about it in relation to film production. Clause 4 talks about who is not covered by the term “employee” in a new section 6(1)(d) to be inserted in the Employment Relations Act. It states: “(i) a person engaged in film production work as an actor voice-over actor stand-in body double stunt performer extra singer musician dancer or entertainer: [or] (ii) a person engaged in film production work in any other capacity.” That covers the rest of the people in film production. It goes on to talk about pre-production work and post-production work. So this clause potentially includes everybody: the cleaner the person answering the phones and all of the range of people involved in film production work including the production of film or video games. 
Hon Trevor Mallard 
: Hairdresser? 
CAROL BEAUMONT 
: Yes it includes hairdressers and all sorts of people. 
The reality is that the bill talks about those people and it creates effectively a default situation. It says that those people “are independent contractors unless …”. This of course is the area where the Minister has got into a little bit of trouble over the wording about when those people might be employees. My colleague Charles Chauvel went through that area yesterday and explained that potentially this bill could create even more uncertainty. We could go from a situation of having settled law to a situation of having more uncertainty. The Minister has responded—all credit to her—by putting forward an amendment to try to pick up the point that Charles Chauvel made; she recognised it was a legitimate point. 
That takes me to my next issue about putting a clause like clause 4 into a bill like this. If the Government is serious and believes there is uncertainty then getting it right is important. The worst possible outcome would be to introduce a bill that actually creates less certainty which is what I am worried about.