Employment Relations (Film Production Work) Amendment Bill

Clause 3 of the Employment Relations (Film Production Work) Amendment Bill is very broad. It is quite short in what it says: “This Act amends the Employment Relations Act 2000.” This side of the Chamber has a great deal of respect for that Act. It was legislation brought in by the previous Government. It repealed the badly thought of Employment Contracts Act—an Act that did a lot of damage to our economy and to our workforce.

The Employment Relations Act, the principal Act, will be amended by this bill. I thought it was worth making a couple of contributions on the matter of amending the Act. The Government has shown it is very keen to amend the Act since it was elected. I wonder why that is. This Government is very backward-looking, in terms of employment relations. Its members yearn for the days—the good old days, from their perspective—of the Employment Contracts Act. They do not like working people, wage earners and salary earners, and working to achieve a better outcome for themselves and for their families. We are a low-wage economy and we are going backwards in that regard. The gap between wages in Australia and New Zealand is very high and will get worse because of the amendments that this Government is making to our employment relations system.

This Government sees things like being able to sack workers for no reason, without having to give them a reason, and with no right of redress as good law. The reality is that most Kiwis do not agree with that. Most Kiwis do not think it is fair that workers can be sacked without reason, without being told any reason, and without any right of redress. It is just unbelievable, but that is what the Government is doing. Of course it is extending it from small workplaces to large workplaces.

That is one of the amendments to the Employment Relations Act that this Government is pushing through right now, but of course there have been others. We will see the appalling situation where workers’ rights to meal breaks and rest breaks—statutory minimum rights—will be reduced. In fact the reality of that amendment to the Employment Relations Act will mean that many employees will be back to where they were before Labour changed the legislation. They will be back to the situation of being dependant on what they can agree with their employer, because there will be no statutory entitlement to both paid rest breaks and unpaid meal breaks. This is the backward-looking, dark age approach to employment relations.

Members on this side of the Chamber see employment relations quite differently. We do not see it as a contractual obligation and we do not see labour as a commodity. We see employment relations as being about how working people work in their job, in their workplace, alongside their co-workers, with their employer, where they can band together collectively to try to have both an independent voice and also improve their working conditions and wages. We see that as a good thing. This is where the Minister for Economic Development and the Minister of Labour are so negligent, because what we need is a complete transformation in the way that work is undertaken in New Zealand. If we want to lift our economic performance, then we should not be looking at these nasty cuts to minimum provisions and attacks on working people; we need to be looking at high-quality workplaces, where individuals are valued, where collectively they have voice, where their ideas are encouraged and sought, and where we look at transforming our workplaces into much more productive places.

There is a common advantage in lifting productivity, which leads to higher wages for the workers and higher productivity, and this means we achieve a better outcome from our workplaces and our industries. If we want the high-value economy that we say we want, if we want to close the wage gap between Australia and New Zealand, then that is where we should be focusing. The Minister of Labour and the Minister for Economic Development should be the two people who are advocating for that change. They should be saying that we should do things differently. They should not hark back to the bad old days of the Employment Contracts Act. As I said in an earlier contribution, this legislation, which is another amendment to the Employment Relations Act, is a mickey mouse amendment.

Before I call the next member, I say to members that they will be challenged on their debating skills in the Committee stage. I draw members’ attention to a very fine chairperson of the Committee, whom some will remember very fondly, the Hon Marian Hobbs. She said that members must “focus on the wording of the bill, on the intention in this bill, and not to focus on alternatives that are not part of this bill.” This is about the detail of the bill.

I say to members just before they get up—I see Mr Grant Robertson is very keen—that we are discussing clause 3, “Principal Act amended”. It simply states: “This Act amends the Employment Relations Act 2000.” That is it. Members need to focus on the detail of the bill. As I said, members will be challenged, but I am sure members are creative. I want to hear speeches that conform to the requirements that Marian Hobbs has placed on the Committee stage.

I will certainly endeavour to focus on the Employment Relations (Film Production Work) Amendment Bill, which, as you say, Mr Chairperson, amends the Employment Relations Act 2000. I think that in the debate at this point we can assess whether that is the appropriate Act to be amending, what that Act does, and whether this amendment is appropriate in terms of the Act.

I refer the Committee to the object of the Employment Relations Act 2000. In particular, the object of this Act, as stated in section 3(a) is, firstly, “to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—”. I will say that again for members. The object of the Employment Relations Act—mentioned in clause 3, which we are discussing here—is “to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—”. The question I ask is whether this amendment bill supports that object. I ask whether this bill, which says that no matter what happens in the employment relationship, and no matter how it might change over time, people are locked into the relationship they were in when they signed the contract, supports that object. I say to Ms Wagner that that is what this bill does.

This bill says, despite what might have been decided in 2005, that whatever happens after a contract is signed, people are locked into the relationship they were in when they signed the contract. When we look at the Bryson decision, we see that the main element to arise from it was that the nature of the employment relationship depends not only on what the parties intend and agree but also on what they do and how they conduct themselves. This amendment bill says that the second part of that, what parties do and how they conduct themselves, is no longer a relevant consideration. The Employment Relations Act is now limited to such a point that there is now no ability to take into account how the relationship evolves over time. There is also now no ability to go to court to even test whether the relationship has changed in such a way that it is no longer appropriate to consider someone to be an employee or a contractor.

We are looking at clause 3 in this bill that amends the Employment Relations Act, and it is important to look at the objects of the Employment Relations Act and how this bill supports or does not support those objects. In my opinion, the kind of change that the Government is proposing here is against the idea of good faith. It is saying that no matter what actually happens in an employment relationship, if good faith is not progressed and if things change in the employment relationship, the relationship is still locked down to how it was when the contract was signed on day one. Mr Bryson’s case shows us that employment relationships can change. Someone can be taken on as a contractor, but then, in effect, become an employee by the nature of ongoing work within the same organisation, and by doing a similar piece of work. Eventually, both parties might consider that person to be an employee, but under this bill they cannot do that. They cannot take the relationship to court to test it and they cannot change it; it is locked down. As we look at clause 3 of this bill, which amends the Employment Relations Act, my view is that the objects of the Act are no longer being fulfilled by this amendment.

Let us continue to the second part of the object of the Employment Relations Act. Section 3(a)(i) states that the object of this Act is to build productive employment relationships “by recognising that employment relationships must be built not only on the implied mutual obligations of trust and confidence, but also on a legislative requirement for good faith behaviour;”. Trust, confidence, and good faith are key objects of the Employment Relations Act, which is mentioned here in clause 3. They are being broken by this amendment. How can trust and confidence be there if it is actually impossible for somebody to relook at the nature of his or her employment relationship? How can it possibly improve trust and confidence, which are the objects of the Employment Relations Act, if someone can no longer go to court to assess whether that relationship has changed?

The law in this area is settled. There is no need for so-called clarity. Movies have continued to be made in New Zealand since 2005. Major, big-budget production films have been operating perfectly well in settled law. There is no need to undo the Employment Relations Act. This bill amends the Employment Relations Act. The Act in itself has in its object clear things—

I have been listening to this debate on television before I came here, and I am mindful of the ruling that the Chair whom I relieved, the Hon Rick Barker, made in quoting Marian Hobbs in Speaker’s ruling 10/5. This is not a debate about the objects, as the member has just been relaying; it is specifically about clause 3, which states that this bill amends the Employment Relations Act. It is about amending, and we shall keep a tighter rein on subject material in relation to this.

I raise a point of order, Mr Chairperson. I am sorry; I was out of the Chamber. I am not sure whether we are allowed to refer to watching the debate on television; I think that is for people outside. I will not refer to watching on television. The question I have is whether it is in order, seeing as we are proposing amendments to the Employment Relations Act—because it goes to whether the Opposition might support this clause; clearly, we will not support the bill—for other amendments that are obviously related and within the general scope of the bill to be added. As the train is going through, can additional carriages be added to it? I think we can accept there cannot be general, totally unrelated amendments to the Employment Relations Act, but how far the Act is opened up by this clause affects whether, in fact, we support it. Some of us would like to make some other changes, as well, and we might well be supportive if that was the case.

The CHAIRPERSON (Eric Roy): I think I will now read Speaker’s ruling 108/5: “Members must focus on the wording of the bill, on the intention in this bill, and not focus on alternatives that are not part of this bill.” I think that answers the member’s question.

I thank the Chair for that clarification. I want to speak on clause 3, which amends the principal Act and names the principal Act to be amended as the Employment Relations Act 2000. I accept that the previous contribution from my colleague Grant Robertson was asking a very important question about whether that is the appropriate Act—

💬 Grant Robertson: The amendments.

The question is whether these amendments are appropriate for the Employment Relations Act because of the objectives that that Act very clearly sets out.

I think it is important that when a Government, particularly in urgency, without seeking the views of the New Zealand public—it sought the views of an American corporation, but did not ask the views of the New Zealand public—decides to amend one of our domestic laws at the behest of an American corporation without any reference to the New Zealand public, it is appropriate that we ask whether these amendments are appropriate for this particular Act. Its objective is to have productive workplace relationships and enhance through good faith those workplace relationships.

These amendments, as I understand them—and perhaps the Minister in the chair, the Minister of Labour, can get up and correct me if I am wrong—attempt to interrupt the employment relationship. They make an employment relationship for workers less possible in the film industry. These amendments determine that once two parties in the film industry agree—an actor or anyone working in the film industry and the person who is contracting them as an independent contractor—that agreement can never be changed or contested. The parties to that agreement can never ask whether at some point it has changed from being an employment relationship of an independent contractor to an employment relationship of an employee. That is at the heart of what this clause seeks to do. It seeks to amend the Employment Relations Act. That Act was put in place with the objective of enhancing, and making more productive, employment relationships within workplaces. Yet here we have this bill being put forward, which seeks to have less of a relationship between the film industry and the staff whom it—I say loosely—employs. I wonder whether I can still say “employ”.

The whole point is that this legislation is being put through at the behest of an American corporation without any reference to the New Zealand public and without asking them whether they think it is the right Act to be amended at all. The very point of this amendment is to say that there is not an employment relationship. In the film industry, for some reason—in the film industry alone—the vast majority of people will not be in an employment relationship; they will be in something different called an independent contracting arrangement.

This amendment causes me to think about the other times that the Employment Relations Act has been amended, particularly under urgency. I wonder how many times this Government has amended that particular Act without any reference to the New Zealand public and without giving them the opportunity to say: “Hang on, that is our Act of Parliament, and we have something to say about it.” In fact, straight after the election, it happened a first time when the so-called 90-day trial period legislation amended the Employment Relations Act, and, again, the New Zealand public had no opportunity to come and voice their issues. Companies could not come and say what they thought, workers could not come and say what they thought, and even the Law Society could not come and say what it thought about the Employment Relations Act being amended in that way. It has not been able to do that in this instance either. I think that is a very important issue to raise when debating clause 3. We have not had—as we like to have, I think, in this Parliament—a submission from the New Zealand Law Society. We have not sought its advice about whether this is the appropriate Act to amend in this format, given that its objective—[Interruption] Pardon?

💬 Hon Tau Henare: Tell them to come and stand for election.

Oh, the Law Society? So now anyone who wants to have a say over any legislation, according to Tau Henare and National, needs to be a member of Parliament. Apparently, only members of Parliament can have something to say about whether the Employment Relations Act is the correct Act to amend.

I would like to speak to clause 3 of the Employment Relations (Film Production Work) Amendment Bill, which is really asking whether this Parliament will amend the Employment Relations Act so that Warner Bros will be happy. I mention in passing, and to put some context here, that there is a great exhibition at Te Papa at the moment about the 20th century. There are some fantastic clips of Prime Ministers of New Zealand, like David Lange and Norman Kirk, standing up in the world, proclaiming our independence against America, standing up for democracy, and standing against injustice. I even wrote down what Norman Kirk said. He said we must be prepared to make our voice heard. He said: “We are a small nation but we will not abjectly surrender to injustice.”

But now, in the 21st century, we are rewriting the script. Now we will abjectly surrender to any multinational corporation. We will amend the Employment Relations Act or any other Act to make a multinational corporation happy. We have now entered a new era of grovelling—grovelling our way in the world. It is a shame that the chief groveller is not here to defend his actions. Many people are asking where it will all end.

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. I apologise to the member for interrupting, and I apologise to my colleagues that I have to do the Government’s job. But referring to the Prime Minister as a chief groveller is out of order.

The CHAIRPERSON (Eric Roy): Certainly, the member is correct that an allegation of someone being a groveller was made, but I am not sure that it was specifically levelled at the Prime Minister. I guess it is probably appropriate for a timely warning. This debate has been robust, but once get into name-calling it escalates to a situation where the chair has to intervene.

People are asking where it will all end. What will happen if next month McDonald’s comes to the Prime Minister and the Government and says it will shut all its fast-food restaurants in New Zealand unless the Employment Relations Act is changed to require that all McDonalds workers are contract workers who will not be entitled to penal rates or holiday rates? Why would it not do that on the basis of what is happening here today? What about Woolworths, another multinational corporation, which owns the second-largest supermarket chain in New Zealand? What if Woolworths comes to the Prime Minister and says that unless the Employment Relations Act is changed, it will pull out of New Zealand? What if it threatens to shut down all its supermarkets unless the Employment Relations Act is amended?

I am not sure how many MPs in the House have read the excellent book by David Korten called When Corporations Rule the World. It is described as a modern classic, and it basically asks whether Governments are becoming obsolete and whether corporations are now in charge. Some have said it is becoming increasingly prophetic each passing day. It is certainly prophetic right here in New Zealand. There is living proof now that corporations—even if they do not rule the world—certainly rule in New Zealand. If any corporation wishes to or threatens to take away its toys, and demands that we change the Employment Relations Act, we will willingly make that change.

What is so unique about what is happening today, I think, is that it is so blatant and so overt. All of us who have been around in Parliament for a while know that multinational corporations exercise huge influence over this House. Speaking of the Employment Relations Act, I recall that I had an amendment to the Employment Relations Act—my bill about flexible working hours. The corporations came in here, and they threatened that if that bill was passed they would take their workforce overseas and shut down their factories. They said that amending the Employment Relations Act would be disastrous.

Normally, all the influence of multinational corporations happens behind closed doors. It happens covertly, through lobbyists. But this move was so overt, there was no need for lobbyists. All that was needed was to send over a whole lot of executives from Warner Bros, and we slavishly capitulated and changed the Employment Relations Act.

The other thing that is extraordinary is that usually when a multinational corporation gets to change the Employment Relations Act—

I will take a short call on clause 3 of the Employment Relations (Film Production Work) Amendment Bill, which states “This Act amends the Employment Relations Act. Fundamentally, that takes us back to why we are here in Committee, in urgency, debating amendments to industrial legislation that are not required. They were never asked for by the actors and those engaged in the industry, or by the producers. I go back to what Gerry Brownlee said in May 2009, when he was fronting a New Zealand film networking function. He stated: “Our competitors continue to work to attract productions to their countries. So while we don’t want to engage in a ‘race to the bottom’ within higher and higher incentives the next step is to cultivate a regulatory environment that makes it easy for filmmakers to come to New Zealand, and film in our locations, use our facilities, and hire our workers, and engage our talent pool.”

Labour would have agreed with that statement in 2009, but never since 2009 have workers in the film industry asked for legislative change to give them clarity or to give producers clarity about hiring staff. They have never asked for that.

💬 Hon Gerry Brownlee: Why did they put on the black ban?

The Minister opposite knows that when he met them in his office they reached an agreement to work together on looking at a new approach based on the Pink Book and reaching an industrial standard. The Minister knows that that was the agreement—[Interruption] Yes, but the agreement was never to change the Employment Relations Act. It was never in National’s film strategy. It was never in its economic plan that it would amend industrial legislation and go back to the days of the Employment Contracts Act. It has never ever stated to the public that changes to the Employment Relations Act were required. It was not until Warner Bros came and bullied New Zealand saying that it wanted clarity that this happened. The Americans will be laughing at the fact that New Zealand has rolled over, bringing this House into urgency—making a mockery of urgency—just to get the Employment Relations Act changed today, quite apart from the incentives.

What Mr Key has changed in perpetuity is the right of workers to have their actual employment conditions be the determinant of whether they qualify for sick leave, annual leave, and normal working hours. Commentators are noticing this. The Government wanted to attract the industry to New Zealand, so it was prepared to go beyond financial incentives to change the paramountcy of our domestic legislation, our industrial legislation, for the will and the demands of Warner Bros in America. That is simply disgraceful. The whole premise for this wrong track that New Zealand is now going down is that Ministers were confused. They were in a chaotic state. They were responding to pressures that they perceived about the need for a change to the Employment Relations Act. They sought Crown Law advice based on the assumption that the actors wanted collective bargaining. That was not right. That will cost the Crown—

💬 Hon Gerry Brownlee: Yes, it was.

No, it was not right. The actors were working on an industrial standard based on the Pink Book, and the Minister knows that. He had them in his office, and that was the agreement when they left his office. Those parties agreed to find a Kiwi solution together. It could have been our own domestic solution, based on those industrial standards, and we could have moved forward.

Now we have a stripping of the rights of workers, a stripping of all of those benefits that they had fought so hard for industrially, and that is why I cannot support the change to the Employment Relations Act proposed in this bill. The workers in the industry know they are independent contractors. They absolutely know that. They do not know what benefits accrue whether they are an employee or an independent contractor, but they knew that they had the ability to work together to find the right industrial solution.

💬 Hon Tau Henare: That’s the next clause.

No, it is not—we did not need to change the Employment Relations Act. We are going back to the dark days before 2002.

I am happy to take a call on clause 3. It states that the bill amends the Employment Relations Act 2000, which is domestic legislation. The Labour Party has a proud history of fighting for independent foreign policy. I think today is a sad day in the Chamber, when we now have to fight for independent domestic policy. This is a huge shift. We are amending the Employment Relations Act because a foreign multinational company has pressured the Government to do so. We on this side of the Chamber do not believe that step was necessary and we do not believe it should have been taken.

I had an email overnight from a colleague in an overseas Parliament, who said to me that this cannot be true. He said that someone told him New Zealand was amending its Employment Relations Act 2000 because a foreign company had asked us to and had put pressure on us, and he said that that would not happen in a modern, developed country like New Zealand. I had to go back to him—

💬 Hon Tau Henare: Is he from Cuba?

💬 Hon Gerry Brownlee: No, he’s from North Korea.

—he is a member of Parliament in the Westminster Parliament in the UK—and say that it is true. It is true. A foreign company came and said that it wanted us to amend the Employment Relations Act 2000 because it did not like it, and our Government rolled over and said, yes, it would do that.

The Government did not have to do that. Had the Government negotiated this dispute better we would not be here amending the Employment Relations Act. Had our Government not gone out and tried to whip up anti-union sentiment, because it saw an opportunity to amend the Employment Relations Act 2000, we would not be here. The Government thought it was a chance to have a whack at the unions and change some employment law that it did not like. But had it pointed out the reality instead, which was that this matter had been settled, there was no danger, no more industrial action was being threatened, and it was a peaceful industrial relations environment—emails that have been released have shown that the Employment Relations Act did not need to be amended in order to fix it—we would have been in a much stronger negotiating position. We would not have needed to be here, sitting under urgency, passing law to amend the Employment Relations Act 2000 at the behest of an overseas corporation. We may not have had to pay as much subsidy, either.

The Government had a choice. It wanted to amend the Employment Relations Act, so it decided it would whip up some frenzy, which was not justified. The Government knows it was not justified, because this was all resolved a long time ago. Since the court case that we are discussing, we have made huge numbers of movies in New Zealand and have not had a single problem that would suggest we need to amend the Employment Relations Act 2000 to fix it. We have made a huge number of movies with absolutely no problems. Government members know this was sorted.

We are here because our Government decided to take an opportunity. Last week there were protests, attended by tens of thousands of people, against some of the Government’s other employment relations changes. It was feeling the pressure, so it thought it would have a whack at the unions and amend a bit of law it did not like anyway, the Employment Relations Act 2000. Who cares if it means we end up in the position of paying higher subsidies offshore, and also have Parliaments around the world looking at us saying: “Are you kidding me?”. We are changing laws in New Zealand because Warner Bros asked the New Zealand Parliament to.

Of course everyone in this Chamber is pleased that this movie will be made here, but we do not believe that the Employment Relations Act 2000 needed to be amended in order to do that. If the Government had handled this matter better—if Mr Brownlee himself had developed relationships with Warner Bros, like the previous Government did, and not come in at the eleventh hour, when the relationship had broken down and when everything was in a shambles—we would not be here amending the Employment Relations Act 2000.

Let us be clear. This is opportunistic by the Government—very opportunistic. Government members are not telling the whole story in their speeches. Everyone is very, very pleased that this film will be made here; it is a shame that the price we had to pay was being seen as a Parliament that no longer has independent domestic policy.

I move, That the question be now put.