Flashback 1: 2010

After the phenomenal commercial success of Peter Jackson's Lord of the Rings trilogy, came The Hobbit - another high profile, multimillion dollar internationally funded production. Equity New Zealand, the New Zealand Actors Union, used the opportunity to push for the right to bargain collectively and flagged an international actors boycott on the film if this did not occur. Warner Brothers' Burbank studio, the bankrollers and distributors of the film then threatened to pull the $US500 million project out of New Zealand.

The fallout was fierce, with the industry riven into two factions: on the one hand director-producer Peter Jackson and the technical crew of the films, who feared Warner Brothers could make good their threat. Warner's were deploying location scouts around the world to intensify the threat, with England's Leavesden Studios, site of the Harry Potter shoots, emerging as a supposed alternative to Peter Jackson's Wellington facilities (would Warner Bros really have ripped Jackson and his sets, props, miniatures, cast and crew from their "Wellywood" home in order to avoid industrial action, only to deposit them in already unionised England instead?).

On the other side were the actors led by Robyn Malcolm and Equity New Zealand - backed by the late Helen Kelly* and the Council of Trade Unions (CTU), and the International Federation of Actors attempting to gain a better deal for their people by boycotting the film. The Hobbit crisis erupted with both sides marching in the street. *Bill Rosenberg's obituary of Helen Kelly is in Watchdog 144, May 2017. Ed.

The nation's currency briefly fell on the possibility of losing the lucrative project. Enter Reservoir Dogs in the form of Burbank studio lawyers and executives, including current Chief Executive Officer Kevin Tsujihara, who were shuttled around in limousines with then Prime Minister John Key who promised whatever it took to keep the film here.

Under massive pressure and outmanoeuvred by the axis of Warner's, Jackson/Weta Workshop and the Government, Equity New Zealand, with the blessing of the CTU, called off the boycott and the demands for collective bargaining. But the power-broking troika was intent on using the opportunity to downgrade employment law and allowed the public to believe that the Hobbit dispute was unresolved - fake news but a necessary backdrop for what was about to happen. Citing the demands of the powerful Hollywood studios, the National government simply changed our employment law under urgency. This legislation was described as a "clarification" of existing law. Fake news followed by fake news.

The Employment Relations (Film Production Work) Amendment Act 2010, commonly referred to as the "Hobbit Law", was one of the darker episodes in our employment relations history. As a result, all film production workers, not just actors, became independent contractors (unless they were party to a written employment agreement that stated they were employees and very few were). Independent contractors do not have the right to collective bargaining under the Employment Relations Act and so these workers - not in fact contractors since they can't ply their trade on the open market - were rendered very vulnerable.

Working from hopeful contract to hopeful contract, they have no statutory holidays, work long hours and must be ever squirreling money away from their hourly payrate for their own sick pay, annual leave (if they can take it) and ACC payments. When the writer attempted to get some comment from those working at Weta Digital, nobody was prepared to talk. In addition to effectively dictating - and perhaps even drafting - legislation, the Burbank studio also managed to extract an additional $US25 million in Government concessions above and beyond the approximately $US75 million tax incentives that had already been agreed on.

As Jonathan Handel pointed out: "It was a potent threat against a tiny island nation of then around four million people, particularly in light of the tourist boom sparked by the earlier Lord of the Rings films and expected from the Hobbit prequels - and the law dovetailed with the Kiwi Government's pro-business tilt under the then-Prime Minister, former Merrill Lynch executive John Key".(i)

Warner Brothers won the 2010 Roger Award For The Worst Transnational Corporation Operating In Aotearoa/New Zealand. John Key and his Government won the Accomplice Award; the judges created a Special Quisling Award for Peter Jackson. The Judges' Report is here. Ed.

Flashback 2: 2017

In October 2017 the Labour/New Zealand First/Greens coalition Government was sworn in. "Prohibiting film workers from organising and collectively bargaining is a breach of International Labour Organization Convention 98 which New Zealand has ratified and must therefore adhere to," said Labour's incoming Workplace Relations Minister, Iain Lees-Galloway, in National Business Review (NBR). "We expect to introduce the necessary (repeal) legislation within 100 days".(ii)

"This is a law that is deeply unfair for workers, so it is wonderful to see our new Government make its repeal a priority," said Equity New Zealand President, Jennifer Ward-Lealand, in a statement on the union's Website. "We look forward to working with Prime Minister Ardern and her team to create a thriving arts and entertainment industry that still manages to treat its workers with dignity and respect".(iii) (Ward-Lealand was a key participant in the six-week fight in 2010).

But film and screen industry representatives must have got to Lees-Galloway very quickly. Within a matter of days of the NBR report, Lees-Galloway was taking a different tack.Radio New Zealand (RNZ) reported: "Today, (19/11/17) Workplace Relations Minister, Iain Lees-Galloway, announced he was working with a number of industry groups, including the Screen Industry Guild, to consider options for replacing the legislation". He said the film industry brought millions of dollars to New Zealand and a collaborative approach was being taken to ensure the laws affecting them were fair.(iv)

And in the New Zealand Herald: "What we are absolutely not going to do is repeal what currently exists and leave a vacuum ... (the new framework) will recognise that contracting is the normal way of doing things in the film industry and, most importantly, provide certainty to producers and people who plan to invest on making films in New Zealand". And Lees-Galloway added that "a repeal of the Hobbit law may not be necessary".(v) To RNZ he said "it was more important to get new legislation right than to do it in 100 days, and that was what industry and unions wanted. It would be pointless to stick to a manifesto commitment that didn't actually get us the result that we were looking for".(vi)

2018-20

By January 2018 a Film Industry Working Group (FIWG) had been set up to consider the issue. Members were Alex Lee of Film Auckland, Alice Shearman of the New Zealand Writers Guild, Augie Davis of the Stunt Guild of New Zealand, film producer Barrie Osborne, Brendan Keys of Weta Digital, Erina Tamepo of Ngā Aho Whakaari, Melissa Ansell-Bridges of Equity New Zealand, Michael Brook of Regional Film Offices New Zealand, Paul Mackay of Business New Zealand, Richard Fletcher of the Screen Production and Development Association, Richard Wagstaff of the CTU, Sioux Macdonald of the Screen Industry Guild and Tui Ruwhiu of the Directors and Editors Guild of New Zealand.

In October 2018 they released their report. "This has been an exercise in collaboration and compromise, and we believe it sets the screen sector on a much stronger footing going forward," said Group Facilitator Linda Clark (Special Counsel at Kensington Swan law firm). "The screen industry is unlike any other. The nature of filming means producers require certainty of cost and flexibility of conditions in order to complete a production on time and on budget. Project durations are often fixed, and one worker can be involved in multiple productions during a year".

"The working group is proposing a model that reflects the sector's uniqueness. It retains parts of the current law, but also allows contractors to bargain collectively and it establishes principles that promote strong, productive relationships. To keep up with current trends, it also applies more appropriately to the overall screen sector, (including television productions, video gaming, artificial intelligence and virtual reality work) rather than film productions alone".(vii)

Gordon Campbell cuts through: "Somewhere in Heaven, Helen Kelly must be spitting tacks. Worker rights are expendable, it seems, if film projects 'need' to be brought in on time and on budget, and with 'budget certainty' and via 'flexibility of conditions'. That's the same thinking that drove the Employment Contracts Act. Somehow, New Zealand's most modern, value added, intellectual property-driven business sector allegedly 'needs' to retain 19th Century employment laws in order to survive, and thrive".(viii)

Clark's comments were expanded in the preamble to the report. (ix) "As a first step, the FIWG agreed that what has traditionally been referred to as the film industry is better described as the 'screen industry'. Changes to technology and viewing habits have made all screens equal. This includes television, Web-based productions and gaming. The screen industry is a key part of New Zealand's cultural landscape. It provides career pathways for thousands of people in New Zealand. It is an incubator and developer of New Zealand creativity and innovation".

"It allows New Zealand's identity to be explored, expressed and shared. We are well known internationally for being a great place to produce content. Every year, we produce culturally significant, original and high-quality works. In 2017, total gross revenue from New Zealand's screen industry businesses was $3.5 billion. This represented an 8% increase from the previous year. Production and post-production businesses had total revenue of $1.9 billion in 2017, with $792 million (42%) coming from overseas sources".

"Due to the highly mobile nature of the screen industry, the attractiveness of New Zealand as a production location is directly related to the certainty that producers have about our labour laws and their obligations. Our business is also one that is built on relationships between people working in the industry. Our recommendations are based on these well-functioning relationships and a shared desire to provide the certainty necessary for New Zealand's screen industry to thrive. The recommendations also recognise that there are features unique to the screen industry which both support the industry having its own employment regimes and require flexibility and pragmatism".

This last point about the uniqueness of the screen industry seems to have carried the day and become the overall justification for the changes. In June 2019, the Government largely agreed to the recommendations, and is now drafting legislation to implement them. These will probably pass into law in mid-2020.

The key elements of the package are: screen industry workers can agree to work either as employees or contractors; screen industry workers engaged as contractors are to be covered by a stand-alone statute that provides the protection of a set of principles; each sub-industry group within the wider screen industry can negotiate collectively; and a disputes resolution system will support parties to resolve issues.

Under the terms of the Employment Relations Act, this is the only time that workers are permitted to strike. To summarise, the Hobbit Law is being extended from just the film industry to the newly-dubbed "screen" industry. Lip service is paid to the right to bargain collectively among occupational groups in film and screen.

When interviewed, Workplace Relations Minister Lees-Galloway said: "The Government is fully supportive of New Zealand's screen sector and its desire to remain a premium and attractive hub for film production and innovation ...The members (of the FIWG) have unanimously recommended arrangements that they feel will be suitable for the screen sector and those who work in it. .... The Film Industry Working Group is a great example of the collaborative and constructive relationship between businesses and workers that this Government wants to encourage".(x)

Flash Forward

Whatever fair-sounding, balanced phrases are incorporated into the legislation, the overarching reality is that most workers will be forced to continue as "contractors" because they will be offered contracts rather than any collective agreement. Good luck with asking for written employee protection at your next screen industry job interview. Any move to initiate collective bargaining will almost certainly ensure that that contractor is not offered any further work.

With people flocking from around the world to get work with Peter Jackson and Weta, there is little hope that anything will change there and that will likely set the tone for other screen industry workplaces (right now, workers on the Avatar sequel being made at Weta are working 17 hours a day under James Cameron but the jobs were eagerly snapped up).

Gordon Campbell sums up well. "The most 'unique' thing about our film industry is that a New Zealand government chose in 2010 to change our employment laws to suit the desires of (a) a Hollywood studio, and (b) their local partner. As a result, the working conditions for film workers here are less fair and balanced than in almost any other developed country. Far from being 'unique' and corralled only within our film industry, these dire conditions are now likely to be applied to all digital visual industries, and (potentially) elsewhere in the gig economy to boot".(xi)

Endnotes

1. Jonathan Handel, "The New Zealand Hobbit Crisis: How Warner Bros Bent A Government To Its Will And Crushed An Attempt To Unionise 'The Hobbit'", Hollywood Analytics, 2012
2. National Business Review, 5/11/17
3. Equity NZ press release, 27/10/17
4. Radio New Zealand, 19/11/17
5. NZ Herald, 14/11/17
6. RNZ, 19/11/17
7. FIWG media release, 17/10/18
8. Gordon Campbell, Werewolf, 18/10/18
9. FIWG recommendations: Background.
10. Lees-Galloway press release, 17/10/18
11. Campbell, Werewolf, 18/10/18