Posts by Matthew Poole
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I can't see how s6(5) could be used to determine that a film worker is an employee in a situation where s6(1)(d) expressly states that they are not. Surely in making a declaration a judge has to apply the law, which will now clearly state that certain types of workers are not employees. That's how I read it anyway.
Scott, the way I read it is that s6(2) is not touched, and that's the section that says that the true nature of the relationship must be examined. So s6(1) is modified to say that film workers aren't employees unless their contract says they are, but does nothing to stop an application under s6(5) and nothing to stop a judge looking, per s6(2), at the true nature of the relationship.
You're the lawyer, I'm just a geek with a Commerce major in Commercial Law, but I don't see how the proposed changes block judicial examination of the whole relationship. They're ostensibly trying to stop another Bryson, but to paraphrase badly I don't think the words they're inserting mean what they think they mean. -
What judicial recourse would there be if the parties have agreed that a person is a contractor? Isn’t that the end of the matter under the new bill? The exclusionary wording in the new subsection 6(1)(d) seems to take the matter out of the scope of subsection (2), which allows the ERA or court to look at the substance of the relationship.
I read s6(5) of the ERA as allowing a judicial determination as to the status of a person who is purportedly in an employer/contractor relationship, regardless of what is or isn't defined in s1. I don't see language in the Bill that would negate the availability of that option, and in any case removing the option of judicial review of a contract is a very significant imposition.
Either I'm missing an interpretive link between s6(5) and s6(2), or this is precisely the kind of fuck-up that I envisaged when I talked about the inability to get it right when drafting in haste.
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Dylan, look further:
excludes work performed, or services provided, in respect of the production of any programme intended initially for broadcast on television
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I have to say, the bill is far better than I feared. It's actually pretty reasonable, and contrary to Helen Kelly's musings it doesn't make PJ's secretary a contractor. It doesn't, however, put an end to a Bryson situation arising again. Makes it less likely, by legislating a presumption of contractor status, but doesn't remove judicial recourse.
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The hobbit bills covers "game production"
Given that it appears to be a fairly wide-ranging industry bill, rather than a specific The Hobbit bill, I'm not surprised. Voice-overs, for one.
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It was a long day that worked out to about $15 an hour in the end. That's actually getting close to the legendary minimum wage film job, for skilled work.
She's lucky it remained above minimum wage, TBH. Actors of my acquaintance who've worked on that production have said that, once you account for the agent's cut and the various deductions for ACC, your margin above minimum wage can be getting down to "read an acting contract through it" degrees of thinness.
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If those had been given, it would STILL have been "NZ buckling and changing its laws to keep itself in the pockets of a massive multinational corporation".
Yes, but it would've been a wider-ranging change than just something done for The Hobbit. Allowing independent contractors to negotiate collectively with a single purchaser of services, in the nature of a trade union, is not necessarily a bad idea. It's also one that, on reflection, should not be deemed to be prima facie price-fixing, which is the case at present. If the law allowed the "in the nature of trade union" test to be applied by a court, it would allow for judicial common-sense examination in the event that the ComCom believed the system was being rorted, without having to become a more prescriptive regime.
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W.r.t. the law changes, we've already got some models for defining contract workers (share milkers, real estate agents), so it's not as if they have to start from a zero base.
The extent of the definition in the Real Estate Agents Act is to say that the contract is conclusive if it expressly states that the relationship is employer/contractor. That's not a satisfactory (in terms of being equitable) resolution to the movie industry issue, where a relationship that is very definitely employer/employee (such as Bryson) can be deemed employer/contractor on the strength of a "Take it or leave it" threat to withdraw employment on the part of the employer if the contract doesn't say "This relationship is that of an employer and an independent contractor." For actors and the like, it's not really a problem, but for some of the FX or modelling workers it could be.
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And once again urgency rears its head so that National can expedite the resolution of a "problem". How many unintended consequences can there possibly be in ramming through a law to clarify, supposedly on a strictly sectoral basis, the employee/contractor distinction? I mean, it's only one of the biggest issues confronted by the ERA and they still have to decide each case on the specific facts.
National couldn't even get the law right on trying to disenfranchise all incarcerated persons, and one would've thought that that language would be moderately straightforward. Now they're dicking around with a complex aspect of employment law literally overnight. Fucking awesome. -
And are the actions - or threats of action - from SFO or Police to publications
Just to clear one thing up, this is strictly the SFO and could never be the Police. The SFO, by law, are not acquainted with anything resembling a Bill of Rights right (in terms of self-incrimination or freedom of the press). The Police, on the other hand, are. The SFO can demand any document, and demand that you answer their questions, and refusal to comply is an offence to which there is no judicial come-back. The SFO Act overrides the Bill of Rights Act, both because the Bill of Rights Act says it does and because the SFO Act was there first.
Whatever one thinks of the idea of merging the Police and the SFO - and I personally think it would be a loss of some very significant institutional knowledge from the SFO along with probably a negative impact on investigations into white-collar crime - bringing in limitations in their powers could only have been a good thing.