THE SUN IS SETTING ON THE 'HOBBIT LAW': A WORD TO CONTRACTORS & PRODUCERS IN THE SCREEN INDUSTRY
If you work in the Aotearoa screen sector, this should be on your radar. We’re about to see some changes to the traditional arrangements regarding the provision of services by performers, technicians, writers, directors, composers and game developers. The Screen Industry Workers Bill (the Bill) has been through the select committee stage of law-making, and looks likely to be enacted this year.
So, for our current clients and anyone else impacted by the Bill - producers, writers, directors, crew - we are here to help you ensure that your agreements and practices meet the new requirements. Let us know if you have any concerns or queries as these changes roll out and make sure you get in touch with your guild or industry organisation too, to stay abreast of negotiations and to give your input.
In the meantime here’s our summary of what will happen when the Bill takes effect...
Who is affected?
Many, many people working in the NZ screen industry. The Bill does not apply to people working under an employment agreement so if you’re an employee it’s business as usual. It also doesn’t reach as far as those who provide supporting services (think, accounting and marketing teams). If you’re a contractor and you directly contribute to what ends up on screen, take note.
The Bill doesn’t apply to all screen work, however. Some screen productions are (a little perplexingly) excluded from its reach: those relating to sports, news & current affairs, live events, music, game shows, recreation and leisure programmes (such as travel programmes), religious programmes, talk shows, variety shows, training programmes and amateur productions are all excluded, which means in practice that many workers will be dipping in and out of these new rules over their careers (some within each week!) depending on what they’re working on. Perhaps the hope is that the minimum terms of engagement negotiated by way of the Bill will pervade the industry and eventually become the standard across these productions too. The Bill does apply to every other type of screen content including feature and short films, kids tv, documentary & drama, webseries, games, and advertising under 5 minutes duration (i.e. TVCs).
What’s changing?
Quite a bit. The Bill effectively replaces what we know as the “Hobbit law” and restores the right of workers to “bargain collectively”, while maintaining their independent contractor status.
What does this mean?
Workers who are covered by the Bill will be able to negotiate (via their representative guilds or unions) minimum terms of engagement that each individual contract must meet. Matters such as rates of pay and hours of work can be agreed during a negotiation process, or determined by the Employment Relations Authority (ERA) - a body established by the Government to help resolve employment disputes – following the process set out in the Bill. Note that individuals providing services on an applicable project can always negotiate better terms for themselves – the collective bargaining process simply aims to achieve a minimumstandard for every worker. There will be different negotiations for two different “levels” of contracts – those that apply to all workers of a particular occupation in the industry (all performers for example) (so-called “occupation-level collective contracts”); and those covering certain projects (so-called “enterprise-level collective contracts”). This means we will likely end up with different terms for workers depending on, for example, production budgets, or duration, or may see differences across types of productions (games and/or TVCs might engage workers differently to those working on films for example). Individuals who provide services that span separate defined “occupations” are still a bit of a grey area. But overall the idea is that the industry has fair, consistent minimum conditions of work and rates of pay for contractors while they retain their contractor status yet also benefit from some, but certainly not all, of the entitlements the law gives to employees. So it’s a kind of hybrid system.
In addition to setting minimum terms for workers, those covered by the Bill will be given access to a free dispute resolution process through the ERA. Also, the Bill sets out rules for how all applicable contracts must be entered into and what they must contain. This includes the need to provide written contracts in advance of work commencing and to allow reasonable time for workers to seek advice and raise issues – a requirement which will undoubtedly require a change to some common practices in parts of this industry. The Bill sets out terms that must be included in all applicable contracts: notice periods for termination, provisions to help prevent bullying and harassment in the workplace, health & safety obligations on both sides, and a clear explanation of a dispute resolution process. All sensible terms that should be included in a fair and reasonable contract already, but which may require some film/tv, gaming and TVC producers to revise their standard agreements.
When will this affect me?
The guilds, unions and SPADA are likely already preparing for negotiations of the minimum terms. Once occupation-level terms have been negotiated, any new contracts entered into will have 6 months to meet or exceed these agreed minimums. Existing contracts will need to meet or exceed these within 12 months.
Any issues?
While the Bill will certainly help to create clearer expectations for producers and workers, there are a few issues. The process to get to that point will involve significant cost (in time, energy and fees for professional advisors) for the guilds, SPADA, and other industry groups representing screen producers or workers. There may be some practicle issues too with the final stage of the procedure for resolving disputes on the occupation- or enterprise-level collective contracts. And finally, there are also concerns around the international players in Aotearoa’s screen industry and whether these rules can reach as far as their contractual negotiations (perhaps we’ll see the compliance with collective contracts included as a NZSPG requirement? Wait and see). What’s clear is that a behavioural shift, and possibly many months of negotiations lie ahead of us.
Melanie Chuter
Film & TV Lawyer, Sinclair Black