Posts by ScottY
Last ←Newer Page 1 2 3 4 5 Older→ First
-
I just gave Muriel Newman money
I know the feeling. I once bought an Ian Wishart book. I thought that as the years passed the pain and feelings of humiliation would recede, but they don't.
-
Jason Gunn and Paul Henry will be your hosts as the nation looks for the next Kiwi to be granted extraordinary powers.
I thought Murray McCully was next in line, with the extraordinary RWC liquor licensing powers granted to him.
But being dictator would be nice. I'd like a bigger house, and to be able to put the neighbours to the sword when they have noisy parties.
-
I suspect Hell would freeze over before we saw a Grand Coalition between the Nats and Labour (barring something major like a war or pandemic). Their egos wouldn't allow it.
-
Just what then is New Zealand's leading Internet-based think tank?
Pick between The Standard and Kiwiblog.
Oh, sorry, I thought you said septic tank
-
James, since you clearly don't know any more about mining that most of us here, why don't you give the idiotic conspiracy theories a break?
-
Never mind cutting welfare. Imagine the savings if we got rid of all these useless ideologically-driven working groups and taskforces.
-
Looks great, Russell. Being able to easily look at all the past posts someone wrote is a bit weird though.
-
@Scott, I certainly see what you're saying, and read that way I can see where your view and mine diverge. The problem I have with the interpretation you propose is that the Bill's (non-existent) language around judges examining the contract for service doesn't preclude a conclusion that, actually, it's an employment agreement.
Were a judge to look at a contract for service that was really an employment contract in drag, as was pretty much the case with Bryson as I understand it, I can see at least one avenue for the judge to find that the person is "party to, or covered by, an employment agreement that provides that the person is an employee". After all, the determination that a person is an employee under s6(1)(a) is a matter of fact under s6(2).
Matthew, I understand the point you're making, and I'm not saying you're wrong, because I'm not sure in practice how judges approach employment law disputes.
But I would expect that a judge, when asked to make a determination on an issue, will look to see what the legislation says in order to provide a framework for his or her decision. In my view the legislation, once the bill is passed, will be clear. If you're a certain type of film worker and have signed a contract for services then you're not an employee, regardless of what the substance of the arrangement is.
The Bryson decision seems to have sent a cold shudder down the spines of some in the film industry (probably without good justfication). I'm pretty sure the intention of the legislators is to prevent another such case.
-
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.
Matthew, I’m not an employment lawyer, so am not really an expert on who is or isn’t an employee, but I think it comes down to statutory interpretation.
S6(1)(d) states (or will state, assuming the bill passes unmodified) that certain persons are not employees. It is an express exclusion.
S6(2) allows a court or the ERA to determine whether a person falls within the scope of s6(1)(a). But if that person was a film worker under a contract for service entered into after the bill passes, they would still be excluded under s6(1)(d).
The power of the court to make a declaration under s6(5) exists to help determine whether a particular factual situation is in fact a contract for services or an employment agreement. In making a determination the court will have to apply the law (i.e. s6(1)(d), which says that certain film workers won’t be employees).
I don't read s6(2) or 6(5) as giving the courts the power to ignore s6(1)(d). But like all lawyers I'll cover my arse in case I'm wrong by reiterating that I'm not an employment lawyer.
-
The People's Wine is deepest red!
When drunk it goes straight to the head...A whiter wine is oh so fine
for weaker libs as they opine...But best of all is a rosé
for those who can't choose either way