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Key questions
By Steven | October 28, 2010
I’m no expert on employment law. I claim no insider knowledge on the Hobbit fiasco. But there are some obvious questions that I haven’t seen anyone in the media ask:
1. John Key says he’s going to pass law “clarifying” the difference between employees and contractors, at least in connection with the film industry. What exactly is it that needs clarifying? What is he going to clarify that wasn’t clarified by the Supreme Court in the 2005 Bryson case?
2. Doesn’t he actually mean “change” the law? If so, how? If not, why bother passing new law?
3. In fact, doesn’t he really mean: “make it harder for people on independent contracts to argue that they’re actually employees, even if they’re being treated as employees”? If so, what’s the justification for this?
4. In particular, since it seems that all the actors are happy being on independent contracts, and as far as I know none has ever challenged such a contract, or is likely to, then isn’t this change actually only going to affect the techies and the crew? In which case, is this about the threatened strike at all?
5. How is it going to be achieved? Will the government simply introduce a rule that if the parties describe their arrangement as a contract for services, that will be the end of the story? That is, the courts will not be able to look behind the contract to see if in practice it’s really an employment relationship, even if the studio exercises close control over the worker during an extended period of time, provides workplace and equipment, and integrates the worker into the fabric of the workplace? Or will the government instead be setting a higher threshold before independent contractors can show that they’re really employees? If that threshold is expressed in terms of a general test, or series of factors, how will this provide any greater “clarity” than we had before?
6. If it’s justified to change these rules for the film industry, why isn’t it justified to change them for everyone else? And if it’s not justified to change them for everyone else, why is it justified to change them for those in the film industry?
7. And why do this under urgency, in one day? Legislation can still be passed quickly without doing it this quickly. Isn’t there a danger that it will be rushed and botched? Isn’t it undemocratic to rush it through without at least allowing some degree of input from the public and interested parties through the Parliamentary process? Did Key promise Warners to pass it this way?
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