Employment Relations (Film Production Work) Amendment Bill

I will make a couple of comments, and I will draw the Committee’s attention to a couple of minor tidying-up amendments in my name. The first amendment clarifies that the employment agreement is to be in writing. I thank the honourable member Mr Chauvel for pointing that out. Although it is not really necessary, I am happy to move that amendment to make it crystal clear and to appease his concerns that employment agreements have to be in writing. The second amendment is technical and minor. It provides, for example, for producers and directors who may also be involved in promotional and advertising work.

I have just a couple of comments on clause 4, because this is the substance of the bill. I will make a couple of comments on some of the questions that have been proposed in previous debates. There has been a suggestion that Warner Bros was consulted on labour laws. To clarify, if there is a law that needs clarity, if there is a law that needs certainty, or if there is a law that needs fixing, then I do not really mind who talks to me about it. I do not think that is a loss of sovereignty; I think that is called listening. But what I do think is a threat to our sovereignty is international foreign unions attempting to dictate to us what happens in our country. At the end of the day, New Zealanders do not want international unions jeopardising our jobs and they do not want international foreign unions threatening our economy.

This bill, and clause 4 in particular, is very simple. If someone involved in the film industry wants to be an independent contractor, then he or she can be. If that person wants to be an employee, then he or she can be. It is as straightforward as that.

That was a pathetic little contribution. It has been the only contribution to date from the Minister in the chair, Kate Wilkinson, and she did not even apologise for poor drafting. She did not even apologise for the mess of a bill that she has brought to the Committee stage. She already has two amendments, and it is my bet that she will be back in the House to further amend this legislation before the end of the year. It is my bet that she will be back in the House with further amendments to this legislation before the end of the year to correct the other three errors that we may or may not tell her about at some stage.

💬 Hon Tau Henare: What’s the wager? Put the house up.

As Tau Henare knows, the Minister has another train coming through, due for report back very soon, from the Transport and Industrial Relations Committee. I bet that she will be further amending these amendments as part of that exercise, because of her rushed, hurried, pressured, useless legislation that she has brought before the House.

In the time that I can remember I do not know whether we have had a less effective Minister of Labour. I go back a long way. I can remember my colleague Stan Rodger, and although one did not always agree with him, he was always thorough. He was well prepared.

💬 Grant Robertson: Jim Bolger.

Jim Bolger was my local MP and the Minister of Labour before I was a member of Parliament. He would never have brought shoddy legislation like this to the House. He would have had the officials in his room for days and days working through the legislation and making sure that he had it right, rather than bringing in legislation with five errors, only two of which have been identified to date by the Minister.

I did not know of Kate Wilkinson before, unlike Mr Chauvel, who used to regularly feature in those little legal boxes as one of the top five or six employment lawyers in the country. Certainly in the period before and after he appeared in the Supreme Court, that was the case. To be fair, I did not know of Ms Wilkinson when she was an employment lawyer in Christchurch. She did not feature in those cases, but my friend Mr Chauvel assures me that she was a competent employment lawyer. I would have thought that a competent employment lawyer would give this exercise—

💬 Hon Tau Henare: At least she worked for a living!

At least she worked for a living, rather than going around bottling union officials. At least she used to work for a living, rather than losing her job as a result of applying a broken bottle to the head of a union official, as Tau Henare did—as Tau Henare did.

The point I am making is that if the Minister wants to take a wild and wonderful approach to legislation, and if she wants to be lazy and lack thoroughness in the way that this legislation does, she should have got Tau Henare to be the Minister. That would fit, because this is the quality of legislation we would expect from Tau Henare if he were the person involved in drafting the legislation—

💬 Carol Beaumont: That’s a terrible idea, Trevor.

No, I think that if we match quality with this bill, then it is Tau Henare quality.

I am told by Mr Chauvel, and I accept his assurance, that the Minister—

💬 Carol Beaumont: What about David Bennett?

No, please not. The bill is not as bad or as useless as that. It could not have been drafted by that member. I have seen that member chair a select committee, and he cannot even do that properly.

💬 David Bennett: Oh, come on, Trev, you like it.

I like it? I hate going to that committee! I hate going to that committee, but that is getting slightly off-topic.

I will come back to the bill and to the fact that there are a number of amendments. I think it has generally been accepted by the Committee that this is the clause with the most substance in it. It is the machinery clause of the bill. I see that the Minister is nodding, and she is right. This is the clause on which we expect to debate a series of amendments and to have a lot of discussion. I will be interested to hear the views of members opposite. Unlike in the earlier stages, where they were notable by their silence, on this particular clause I expect that we will have a reasonable amount of debate and discussion.

Essentially I have two sets of amendments, although I presume they will be put to the Committee in three parts. Two of them are alternative ways of handling the expiry date. A decision was made, not too long ago, not to have the whole bill expire on 8 November. My suggestion is that some clauses could expire on that date. It would not take out the entire legislation, but from our perspective it would render it more acceptable from that time on. That is the reason we have taken that approach.

💬 Hon Dr Wayne Mapp: What’s wrong with people making a choice in writing? What’s your fundamental objection?

The member should catch up with the facts. Although he might have been an assistant lecturer in law at a polytech in Auckland, one would think that as a Minister he would have learnt to read legislation and to get the fact that our amendments were tabled before the Minister’s. The Minister was still asleep when our amendments were tabled. I want to make it clear that if we were supportive of making this legislation effective, we would support the Minister’s amendment. It is one of five necessary steps towards doing what the Government wants to do. But we do not support it, so we will not. I make that clear.

If the member had been awake yesterday instead of being asleep, he would have seen some criticism on this side of the Chamber of my colleague Charles Chauvel, the pending Attorney-General inter alia, when he made what I thought was a tactical mistake in giving the Minister advice on one of the amendments that we are now discussing. Mr Chauvel is the person who—I do not want to say unwittingly—without a proper tactical sense made some suggestions to the Government on a way in which it could do what it was trying to do.

💬 Carol Beaumont: He was being helpful.

He was being helpful. In my opinion he was being too helpful to the Minister. If Mr Mapp—is he Dr Mapp?

💬 Grant Robertson: He is Dr Mapp.

Oh dear, oh dear, where did that come from? Was it a raffle? I bet it came from the United States. We had somebody here called Bernie Ogilvy. He had one of those doctorates, as well. With the top of a Weet-Bix packet and quite a decent cheque donation, one can get a doctorate from the United States. We see the evidence of that here in the Chamber. I want to know whether—

💬 Dr Cam Calder: I raise a point of order, Mr Chairperson. My colleague Dr Mapp has a PhD from that fine University of Cambridge.

The CHAIRPERSON (Eric Roy): I guess that is a debating point, but we get to these kinds of interplays when we tend to disregard the fact that all members are honourable members and the debate starts to degenerate. I give just a little caution. Let us try to keep the nomenclatures appropriate.

I think there is nothing wrong with a doctorate from Cambridge, Massachusetts, as long as the cheque that paid for it was not too big. It may well qualify the member for working on a film as an actor, because I think it is fair to say that his dramatic skills are certainly better than his legal skills, as we have seen in the Chamber on numerous occasions, including in his last contribution. The member does not appear to be able to contribute to this debate from a standing position. He appears to be able to stand and he appears to be able to talk, but not both at the same time. That is typical of the approach that Ministers have been taking on this legislation.

The fact that that was the very first speech on the substance of the Employment Relations (Film Production Work) Amendment Bill, and that it amounted to 10 minutes of personal denigration, speaks volumes about the differences between members on this side of the Chamber, who are advocating for the national interest for our country, and an Opposition that is more interested in playing personality politics and looking after its Aussie union mates than in looking after what is important for our country.

Let us go to the core of what this clause is about. It is a very simple issue: is the law clear about whether people working in the film industry are contractors or employees? I think that this Committee should agree that having certainty about that is in everybody’s interests. Let us see what actually happened in the courts. The Employment Relations Authority decided that the person in question was a contractor. When the same case went to the Employment Court, the court said that, no, that person was an employee. Then when the matter went to the Court of Appeal there was a different decision again—a reinforcement that the person was a contractor—and then the Supreme Court decided that the person was an employee. So there we had four judicial bodies coming to two different conclusions. That, in my view, makes it absolutely plain to this Parliament that the law is not clear, and that the right thing to do in the national interest is that we make the law clear with this bill.

Members opposite have made all sorts of extravagant claims about Warner Bros and the like. But we know that really pulling the strings here are the Aussie unions. It is all very well for members opposite to stand up and make extravagant claims, but we are acting in the national interest. I challenge members opposite to tell me who agrees with the description of Sir Peter Jackson—one of the great New Zealanders, a man who has done so much for the film industry—as a spoilt brat, a spoilt brat, by the head of the Council of Trade Unions, Helen Kelly. I ask which members opposite disagree with Helen Kelly. Not one! That speaks volumes about the differences in culture and values between this Government and members on the other side of the Chamber. Successful New Zealanders—those who are creating jobs, wealth, and opportunities for young people—are despised by people opposite, and those members write off successful New Zealanders as spoilt brats. We on this side of the Chamber are proud to stand behind Sir Peter Jackson, his success, the jobs that he will create, and the way in which he has successfully promoted our country.

We have had arguments from members opposite that there should be absolutely no special treatment when defining contractors in employment law. That is what members opposite have argued. Well, that is pretty interesting, because in the very employment law that they passed, they said that when it came to sharemilkers they would have a specific clause. When it came to real estate agents, Labour said that, no, it would have a specific clause. My challenge to members opposite is to ask where their principles are. If there really are absolutes, and if there should not be any definition that differentiates between different industries, I ask why every member of Labour voted for an Employment Relations Act that specifically differentiates in working through the definitions of who is a contractor and who is an employee in relation to sharemilkers, and an Act that also covers those in the real estate industry.

I note another pathetic argument—and this was one that I really found entertaining. Damien O’Connor got to his feet and said it was absolutely disgraceful that when Warner Bros executives came to New Zealand, they were transported by the Government’s cars: “Was that not awful? Did that not show us up?”. In the next speech Grant Robertson said that the Government’s real fault was that we had not had a $100,000 booze-up function in Los Angeles to look after the executives. I would love for those members opposite to please explain the logic about why one of those actions is somehow immoral and one is right.

The last point that I make is about what this issue goes to the core of, in terms of some of the arguments about sovereignty. The real sovereignty argument here is whether we are going to allow New Zealanders’ jobs and opportunities to be held to ransom by an Aussie union. Just as the editorial in the Dominion Post says this morning, this Government would not be doing anything in this space if it were not for the botched—the botched—union attempts to blackmail the production of The Hobbit in New Zealand.

💬 Grant Robertson: Oh!

💬 Kelvin Davis: Rubbish!

Well, if that is the case, I ask what has changed. I ask the members who are chipping in whether they support the call by the Aussie actors’ union for a boycott on The Hobbit. They are silent. It is interesting that they have no view. In my view it was a disgraceful attempt by an Aussie union to disadvantage New Zealand’s most important film industry. I say that this bill that Kate Wilkinson has brought to this Chamber is about the national interest; it is about doing the right thing for New Zealand jobs, and it is about doing the right thing for the New Zealand film industry.

I will make one last point, and it is this: members opposite think that the certainty argument does not matter. I would simply like to draw attention to another case before the courts, with respect to IDEA Services. In this particular case, people went into an employment relationship and the courts later said that the relationship had been misinterpreted. Both employees and the employer, in the case of IDEA Services, were working in the crucial area of providing support for New Zealanders who needed special care. The courts have come to a decision that will cost IDEA Services $500 million—$500 million. And that decision will change what everybody had thought.

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. I have two points. I know that it is unusual for an Opposition member to take issue with the width of debate, but IHC New Zealand and the film industry are two quite different areas. Probably more important, I think that as the member is aware, this is a case on which a hearing is currently being held and a decision has not yet been issued. I think the Speaker, Dr The Rt Hon Lockwood Smith, has ruled on the matter pretty carefully recently.

The CHAIRPERSON (Eric Roy): On the first point, this has been a much broader-ranging debate than I am comfortable with, but I am not sure that there has been any greater transgression with the material that the Hon Dr Nick Smith has introduced than with that of some other members. On the second point about a matter before a hearing, I am not aware of that matter, but if in fact this matter is sub judice, the member ought not to refer to the specifics of the case.

My point is very clear. It is that uncertainty about employment law, which down the track can result in hundreds of millions of dollars of cost, is an investment killer. That is why this Parliament has a duty to provide certainty in employment law—certainty for employees, certainty for employers—and that is exactly what the Minister is attempting to achieve. The legislation is in the national interest, it is the right thing to do, and if there is any skulduggery going on here, it is in the way in which Aussie unions have tried to disrupt the growth of the very important New Zealand film industry.

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?

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.

Before the next member speaks, I draw the Committee’s attention to a matter that occurred while Nick Smith was speaking; I did not want to interrupt him. The Standing Orders and Speaker’s rulings are quite clear on visual aids. During the speech of a member of the Government, visual aids were displayed from the other side of the Chamber. They are to be displayed only when members on that side of the Chamber are speaking. We will not have a repeat of that.

Thank you for that assistance, Mr Chairperson. In this debate I am reminded of the old communist days, when the Iron Curtain was shut down on most of Europe and a few other nations that most of those members have visited in their prime. The most interesting thing is that the blacklist, the boycott that was promulgated by the unions, the Council of Trade Unions—

💬 Hon Trevor Mallard: “Dat”?

Scab? No, no. The boycott was promulgated by none other than the Australian unions, in partnership, I suppose, with Helen Kelly. That destroyed a word that those members love to get on their hind legs about: “trust”. The boycott ruined the industry trust. Gerry Brownlee, John Key, Nick Smith, and the rest of the crew from New Zealand are trying to work up that trust again because it has been so damaged. So a bit of clarity was needed, a bit of clear thinking about who is an employee and who is an independent contractor. As I am a poor old fulla from Ōtara, from South Auckland, explaining it to me would be something like this: if someone signs on as an independent contractor, then that is what they are; if someone signs on as an employee, that is what they are. That is all this bill does. After four court appearances—the courts could not get it right after the first one, the second one, or the third one—there was no clarity. I am not picking which court was right or wrong. But the fact of the matter is that now there is clarity. Now the employee has their rights, and the independent contractor has their rights.

I will let the Committee know something else about my colourful career. I can proudly say that in the early 1980s—members can cast their minds back, if they will—I acted alongside Jodie Foster and John Lithgow as an extra in a movie that was filmed in Auckland.

💬 Hon Dr Nick Smith: I’m sure it was a big hit.

It was a huge hit. It did not come out on video for a while, but it was called Mesmerized. I tell members that it was the easiest $280 I made in a long, long time—$280 in the hand, and all I had to do was walk from point A to point B.

💬 Grant Robertson: How many takes?

One take. It was all over in 10 minutes. Looking back on that huge career move of mine, I was glad that at the end of the day I could be paid. I could put milk in the fridge, and butter and bread on the table for my flatmates, and, boy, I was happy. This industry is worth $2.8 billion to this country at least—a conservative estimate. The people who will reap the rewards of what we do today are workers in this country—workers whom members on that side of the Chamber said they thought they were always there for. Well, if they were there for them, they would have supported this bill yesterday, not taken this Parliament well into Friday, and well into the constituency work that many members of Parliament have to do on a Friday, and on a Saturday as well.

I am a great supporter of industry and workers in this country.

💬 Hon Trevor Mallard: Hands out of your pocket when you’re talking.

No, no. I have a pocket and all I have in it is a couple of Lotto tickets. I tell members that if we had not done what we are doing today, such tickets would have been the only thing that the workers, whom Labour members say they support, could rely on. But now workers have some clarity, and they have a clear distinction between what an employee is and what an independent contractor is. As I said earlier, they need to make the choice. Why is it that Labour members feel it is necessary to tell workers what to do? Why is it necessary for them always to get up and say that the workers deserve this, that, and the other thing; and that the workers believe this, that, and the other thing? Why is it that thousands of workers, thousands of workers in this industry, marched up and down this nation—

💬 Hon Dr Wayne Mapp: On Labour Day.

—on Labour Day? They did that on Labour Day. It was supposed to be a day in thanks for the 8-hour day.

💬 Hon Dr Wayne Mapp: They wanted work.

They wanted work, and they would not have been allowed to work if this dispute had kept on. If Warner Bros had not been allowed in this country, which is what members on that side of the Chamber wanted in the end, then there would have been no work for the many people out there. It is not just actors. With one actor there are hundreds—more—people employed in the industry; there are hundreds and hundreds. The bigger the film, the more people involved.

💬 Hon Trevor Mallard: Not necessarily.

Not necessarily, but members know what I am talking about. Thousands and thousands of people rely on the work that comes not only from the big films but from the small films as well. Labour wanted to take away that right. All we are doing is making it clear for those people.

💬 Hon Steve Chadwick: Rubbish!

It is pretty apparent that we are not making it clear for Labour members, because they still do not understand. Trevor Mallard is the lead speaker on that side.

💬 Grant Robertson: He is the spokesperson on labour, Tau.

Yes. He took 10 minutes—a 10-minute speech, two calls—and 7½ minutes was just personal abuse. It was personal abuse. There was no mention of the definition of “employee” and no mention of the definition of “independent contractor”. No, he did not worry about that. The fact of the matter is that if workers sign on as employees, that is what they are. If they sign on as independent contractors, that is what they are. They start, they finish, end of story. What is so terrible about that? Who knows? That is why we are here. We are making sure that that is clear. We are making sure it is clear for the industry, workers, and everybody else.

I think the fact that the Minister of Labour has had to put forward two amendments shows the problem of rushing this bill through in urgency. I sat on the Transport and Industrial Relations Committee for periods when it considered the employment relations legislation. I have been considering the amendments to the Employment Relations Act that have been before the Transport and Industrial Relations Committee, and the amendments to the Holidays Act. As with every select committee, we have made changes to the legislation. One of the reasons why we do not just rush a bill through in urgency when it is available only at the beginning of debate is that otherwise a bill has to be available for 3 days, so that people can have a look at it and get an idea of what might be wrong with it, then in the select committee MPs can work out what might be wrong with it, and they can take public submissions. All of that is necessary to get good legislation. Even with this very short bill, Kate Wilkinson has come up with two amendments in the middle of this very rapid debate.

💬 Hon Ruth Dyson: Corrections.

“Corrections”, the member calls them. But no doubt there are more.

What is this bill all about? There have been arguments about where the reason for it came from. The reality is that John Key and Kate Wilkinson said that they were open to talking with Warner Bros and Warner Bros wanted to talk to them, so why would they not listen to its views? They then came forward with this bill. John Key said pretty explicitly that changing the legislation was part of the deal with Warner Bros. I do not disagree with Kate Wilkinson talking to anyone, including Warner Bros. She can talk to anyone in the world; that is her right. But when a bill comes before this Parliament and it is based on talks with only one party, that party being Warner Bros, a multinational, and everyone else—employers, unionists, political parties, community people, and any others in New Zealand—is shut out of that discussion before the bill comes to the House, I am concerned. That is an abuse of democracy. If you talk only to a multinational and to no one else, and you do what that multinational wants, you are in effect—

The CHAIRPERSON (Lindsay Tisch): You are using “you”.

One of the problems with the bill and the amendments in clause 4, which amend section 6(1) of the Employment Relations Act, is that they cover anyone working in any way in the film industry. It lists voice-over actors, stand-ins, etc., and section 6(1)(d)(ii) states “a person engaged in film production work in any other capacity.” The bill talks further about pre-production work, production work, and post-production work on or off the set, etc. So we can see an example of someone who might be hired to work for 8 hours straight, a normal day, every day, just sweeping the floors in a particular production studio. In every respect, in terms of the Employment Relations Act and in terms of the court decision in the Bryson case, for that person and the work that they do—they do what they are told, they are unskilled, they sweep floors, it is regular hours—everything is covered as normal. Under this bill the company could say that if someone wants a job sweeping floors, that person has to be an independent contractor. If they do not accept that requirement in the contract, then they do not get a job there, and the company will get someone else to sweep the floor. Is it not absurd that someone who in no way is an independent contractor in substance, under this bill can be defined as one and effectively lose all rights to defend their conditions, and the right to work with others to improve their conditions—the normal things that unions provide for? That is where it becomes highly unjust.

Once we put this exception for all film workers, including people sweeping the floor, in legislation like this, as Heather Roy, I think, said in her speech, why not generalise it to everyone? As it is the employers who can determine who signs the contract and in which form, because they are the people who hand out the jobs, this means we have an un-unionised workforce in New Zealand. Really, that is what this is all about: de-unionising labour in New Zealand. Is that in the national interest? I think that Nick Smith said it was all about the national interest. Is it in the national interest?

It is a huge pleasure to rise and talk about clause 4 of the Employment Relations (Film Production Work) Amendment Bill, which clarifies a very important point. It clarifies a relationship. The lack of clarity on this relationship has affected and threatened the health and viability of an industry worth something like $2.8 billion to our country—$2.8 billion. It is not just about the skills in cinematography, video, digital, sound, and other technologies associated with this film, but also about tourism. The worth of this industry is huge to our country.

This Government is acting decisively to ensure the continued health of this vital part of our economy and safeguard the jobs of thousands of New Zealanders. For this reason I find it absolutely amazing to hear from the Opposition benches some of the stories that we have heard and some of the reasons they are putting forward to oppose this initiative. While we are considering relationships, let us consider the relationship between those members opposite and the unions. They seem to be demonstrating, once again, their thraldom; the members opposite are dancing like puppets to the union tune, and who is the Geppetto?

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. Did you hear what the member just said?

The CHAIRPERSON (Lindsay Tisch): No.

💬 Hon Trevor Mallard: I do not know whether I should repeat it. I think the member knows it is out of order, and he should withdraw and apologise.

The CHAIRPERSON (Lindsay Tisch): If the member has made an inappropriate remark, I ask him to withdraw the remark.

What is—

The CHAIRPERSON (Lindsay Tisch): Did the member make an inappropriate remark?

Point of clarification, Mr Chairman. What is the inappropriate remark?

The CHAIRPERSON (Lindsay Tisch): There is a point of order that an inappropriate remark was made. I did not hear it, but if the member made one—that is why I am asking—

I withdraw. Who is the Geppetto?

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. The member is continuing the same theme. He has already withdrawn the original comment, but this whole line—that members are moving in other members’ directions—

The CHAIRPERSON (Lindsay Tisch): Thank you. The member has just apologised and withdrawn the comment. Do not do it again.

Thank you for that point of clarification, Mr Chair.

We talked about the possible influence of union presidents: possibly the Amalgamated Engineering, Printing and Manufacturing Union’s new president, Andrew Little, and possibly the Council of Trade Unions president, Helen Kelly. I stress that it is “Helen Kelly”, not “Helen Keller”, although it is Blind Week and I am proud to have made a donation to the cause. I suggest it is a case of the blind leading the blind. Union leaders and the Labour Party is a case of the blind leading the blind. At this point in time that could be any of those in Opposition who have spoken today. Given what they have been saying, I will be keeping a close eye on their faces.

I used to despair at the Labour Party; I have now given up all hope. How can Labour members stand in the Chamber arguing against a point of clarification that will save thousands of jobs in an industry that has brought benefits to our country? How can they do that? The film industry has brought huge collateral benefits in tourism and huge collateral benefits within the industry itself. The Labour Opposition is betraying the fact that it is still hidebound in ideology. A fresh idea is as rare as an Uzbek in the outback.

We are talking about a simple point of clarification that has saved the health of an industry that is worth $2.8 billion to our country. Members opposite are railing against a simple point of clarification on whether somebody is an employee or a contractor. I have had the pleasure myself, like the Hon “Tao” Henare—

💬 Hon Trevor Mallard: Who? It’s Tau.

—like the Hon Tau Henare, of serving in the role of an extra in the film industry. I must say it was a great experience. I met some fascinating people and was well reimbursed for a day’s work.

I contend that a simple point of clarification in this amendment bill is totally appropriate and will save our film industry. Thank you.

As ever, it is a pleasure to follow a life member of Northshore Toastmasters, Cam Calder, although the club might withdraw his life membership after listening to that speech. It is good to see Government members actually taking some calls, because they have not been taking many calls up until now.

We have not yet heard a justification for clause 4. Tau Henare told us about his appearance in the film Mesmerized. The problem for us is that we had to sit through the sequel, “Dazed and Confused”. But we found out a little bit about the movie Mesmerized, which Tau Henare was in. The movie Mesmerized is summarised as: “The ultimate price is paid for a young girl’s loss of innocence.” That is the movie Tau Henare was in. Fortunately, we did not get a full—

💬 Hon Annette King: Was it a blue movie?

Who knows? We did not get a full summation from Mr Henare about his role. He said it involved him going from point A to point B. That is all I will say.

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. Again, I do so reluctantly. Discussions of dirty movies at this point, I think, are well out of order, and although this matter was touched on by Tau Henare, extending it in the way that my colleague is doing is, I think, inappropriate.

The CHAIRPERSON (Lindsay Tisch): I think the member has the message.

Thank you very much, Mr Chair.

One of the things that Mr Henare and Cam Calder have just said is that this industry is worth $2.8 billion to New Zealand. That is right; it is a very significant industry for New Zealand. One hundred and twenty films were made during the term of the fifth Labour Government. We got in there and supported the growth of this industry.

If members on the other side of the Chamber are serious about supporting the film industry, why did Gerry Brownlee sit there and do nothing for 2 years, when everyone else in Wellington knew that because of the problems that Warner Bros was having in Hollywood, there was a risk about the Hobbit film. He stood up on the other side of the Chamber and said the Labour Party likes just going to the cocktail parties. No—what we did when we were in office was to keep a relationship going with Warner Bros. That is the issue here today. That is really the reasoning behind this legislation. It is a fact that this Government let the relationship with Warner Bros slide, ended up in a crisis, and then opportunistically, out of that crisis, put forward the legislation that is before us today. That is why we are here.

We are told by Tau Henare that the specifics of clause 4 are a simple matter. If one is a contractor, one is contractor; if one is an employee, one is an employee. But it is not as simple as that. Sometimes when people come in and sign up to be a contractor, they do that because they want that position. They want that job; they want that work. But what happens over time—as it did for Mr Bryson, in the case we have been talking about today—when things change, when the nature of the relationship evolves? Why should Mr Bryson not then become eligible for all of the protections that would come from being an employee?

The Supreme Court said that if there was a change in the way, that an employment relationship develops, then that is a legitimate thing to bear in mind. Things do not remain completely static in every employment relationship. So that is why—

💬 Hon Dr Wayne Mapp: They should then renegotiate.

The point, I say to Dr Mapp, is that the certainty was there. The case was done in 2005. Gerry Brownlee keeps talking about this urgent matter, this festering sore, but Avatar has been made since then. Lots of movies have been made since then. The situation was absolutely settled, in law. This legislation is a complete fiction.

💬 Hon Dr Wayne Mapp: The word “boycott” changed things.

Dr Mapp mentions the boycott. The boycott was over, I tell Dr Mapp. Everybody knows that. Everybody knows that the boycott was over, yet this Government has opportunistically brought in this legislation to carry on its attacks on the workers of New Zealanders, because the Government knows—

💬 Hon Dr Wayne Mapp: Fiction.

What were the thousands of people saying outside Parliament last week? They know that this Government is attacking workers’ rights in New Zealand. The 90-day bill extension is an example.

That is why we on this side of the Chamber do not have trust and confidence that this legislation is not the beginning of a wider set of employment law changes around the status of contractors. Why could this not end up being extended beyond the film industry? It is already extended in clause 4 to the video game industry. When did the video game industry ask to be part of this? Why is the cleaner at two of the really successful video game - making companies in Wellington suddenly brought under this sets of rules? No one on the Government benches has explained how the video game industry came to be caught up in this.

This is shambolic legislation. If the Government was true to its word, it would have been referred to a select committee. It has not, and this law should not proceed.

Mr Chair—

💬 Hon Trevor Mallard: He couldn’t even get into the law school at a polytech—an assistant lecturer of commercial law.

I say if Opposition members wish to interject, they could at least get their facts right for a change. Does that not tell us everything? Right from the get-go Mr Mallard, amongst others, is consistent in that he simply cannot get the facts correct. There are other ways of describing that, but to do so would almost certainly be unparliamentary.

It is extraordinary to listen—and I have been listening throughout the morning, both in my office and in the Chamber—to the nature of the Opposition’s speeches on the Employment Relations (Film Production Work) Amendment Bill. I will pick up on a particular point made by Mr Robertson. He said that the law is certain. It is true that there is a Supreme Court decision, and to the extent that Supreme Court decisions are final, I guess in that sense it is certain. But the Supreme Court identified the core problem. This is what it said in paragraph 15 of the Bryson v Three Foot Six decision: “In the film industry services of the relevant kind were virtually always provided pursuant to contracts for services.” What does that mean? That means the normal pattern is to be an independent contractor. That is the problem with the Three Foot Six decision. The court knew that was the normal pattern, but it then had to take cognisance of the Employment Relations Act 2000, in particular section 6(3), which states: “the court or the Authority—(a) must consider all relevant matters, including any matters that indicate the intention of the persons; and (b) is not to treat as a determining matter any statement … that describes the nature of their relationship.”

The problem is that the legislation leads to uncertainty. That is why at each level of the cases that were heard, the Employment Relations Authority, the Employment Court, the Court of Appeal, and, ultimately, the Supreme Court came to a different decision. The legislation leads to that outcome. The contrast with the legislation we are putting up is that there is certainty. Certainty will be given by simply having reference to the written contract. The written contract will determine absolutely the outcome. If a contract says in writing: “an employment agreement”, that is what it will be. If a contract says in writing: “an independent contract agreement”, that is what it will be. It is hard to be clearer than that. It is a completely different approach to Labour’s understanding of section 6(3) in the Employment Relations Act, which is essentially a subjective test. It is not objective; an objective test would be to ask: “What was the party’s intention, expressed in writing?” It could not be clearer than that. That is why the Employment Relations (Film Production Work) Amendment Bill is necessary.

I have been listening to people say that there had not been problems with Avatar and so on—of course, in a sense that is true. There was something that changed, however, and that was the destruction of trust. My colleague the Hon Tau Henare referred to that specific point. The Opposition can say that is all irrelevant, the boycott was withdrawn, and many films have been made since the Bryson v Three Foot Six decision. But the world changed when the nuclear option was used. I use those words because Sir Peter Jackson used them. He said that option was made even before any communication with him. That boycott destroyed trust, and that trust has not been restored simply by withdrawing the boycott. That did not change the issue of trust. In fact, it indicated the question was whether someone would not just pull astray down the track, halfway through production, or near the end of production, notwithstanding what they had said before. That is the problem when one destroys trust; one removes the fundamentals of reliability and certainty from the industry. Part of the package is that producing certainty in the law became an imperative, a necessity, to ensure that the work could be done in New Zealand and so that everyone involved knew the score, whether one was an employee or a contractor.

There is a very clear choice, a very clear choice. Is one willing to take the practical, pragmatic, and necessary steps to ensure the survival of the big-budget film industry in New Zealand? National is clear on that choice. We are prepared to take those practical steps. It is not enough to just go out and say that we support the film industry; one has to be prepared to take the practical measures that will ensure that outcome. When that test came before this Government, we made sure that the outcome was clear. There are thousands of people, especially in this city, whose livelihoods are dependent on the pragmatic, practical decision being taken. The other side, I guess partly from the luxury of being the Opposition, to be fair, and largely because the Opposition members are heavily influenced by their relationship with unions and their personal relationships with members of unions, have indulged in the luxury of saying that they do not have to be practical, and they will retreat to an ideological position. I ask the Labour Party this: if the situation had been reversed, would it have taken the practical step, or would it have let ideology get in the way and see a $2.8 billion - industry go down the drain? National was not prepared to take that risk. We have taken the measures. The Opposition have let an ideologically driven point of view blind them to the reality that faced this country over the last 4 weeks.

The CHAIRPERSON (Lindsay Tisch): The first typescript amendment in the name of the Hon Trevor Mallard to new paragraph (d) of clause 4, to omit “excludes” and substitute “includes unless their employment agreement expressly provides otherwise” in relation to the definition of employees in film production is out of order as being inconsistent with the principles and objects of the bill as—[Interruption]—I am ruling—stated in Standing Order 292(1).

The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 4 be agreed to:

to add the following subparagraph to section 6(1) in subclause (1):

“(e) paragraph (d) expires on the close of 8 November 2010.”

Following some discussions with the Leader of the House, I seek the leave of the House for us to consider new clauses 5 to 9 as one question with one vote. The reason for doing that is they are a logical group and they stand or fall together. It is likely that if clause 5 fails, they will all be knocked over anyway.

The CHAIRPERSON (Lindsay Tisch): Leave is sought for that purpose. Is there any objection? There is no objection.

New clauses 5 to 9