Future of Collective Bargaining and Atypical Work in the Media, Arts and Entertainment Sector

In October 2022 the New Zealand parliament passed the Screen Industry Workers Act which paves the way for collective bargaining for contractors working in the New Zealand screen industry. The law provides a framework to, firstly, negotiate a collective contract that will set the minimum wages and working conditions for occupational groups working on screen production in the country and then, subsequently, the ability to negotiate additional ‘second tier’ collective agreements with individual enterprises or productions.

This legislation had a four-year genesis and was the result of huge lobbying efforts from Equity New Zealand and other unions and followed on from the government-facilitated tripartite Film Industry Working Group, made up of screen industry producers, unions and government who, by consensus, made a series of recommendations that set the foundations for the law.

The Screen Industry Workers Act is the first law in New Zealand to give workers engaged in atypical employment relationships the right to negotiate collectively. It also goes some way towards addressing the inequities of the Employment Relations (Film Production Work) Amendment Act 2010 – widely known as The Hobbit law – which saw screen workers prevented from collective bargaining by classifying them as independent contractors which excluded them from the employment rights guaranteed to other workers through New Zealand legislation.

The Hobbit Law is infamous for by-passing the normal democratic processes for the creation of legislation in the New Zealand parliament by being passed under urgency within two days of the Prime Minister at the time, Sir John Key, meeting with senior executives of Warner Brothers film studios and producer Sir Peter Jackson. It followed attempts by the local actors’ union, (now Equity New Zealand,) with support from some of the international actors’ unions, to negotiate for better wages and conditions for the New Zealand performers engaged on the production of The Hobbit film. These attempts were strongly resisted by the producer who refused to meet with the union.

The Hobbit Law did not happen in isolation. It was another step in the neoliberal deregulation of the labour relations system in New Zealand that started in the late 1980’s and continued with the industrial relations reforms ushered in by the 1991 Employment Contracts Act. This legislation effectively destroyed the award system – where employees in entire occupational groups and industries had minimum standards negotiated through collective bargaining between unions and employers – and replaced it with enterprise-based bargaining and individual contracts.

Since the introduction of the 1991 law, union density and membership numbers in New Zealand have dropped significantly. According to the OECD figures union membership as a percentage of the workforce in New Zealand was 17.7% in 2017 – when the last figures were provided – down from 42% of the workforce in 1991. At the same time the numbers of self-employed workers has increased. The last labour market survey by the New Zealand Department of Statistics in December 2022 records 369,100 self-employed people in New Zealand, making up 28.28% of the current working population.

For performers, like many other workers in New Zealand, this has combined to lead to stagnation of incomes and increased insecurity of employment over the last 20 to 30 years. It has also increased inequality and social inequities. To some extent this has been recognised by the current government and, as well as the introduction of the Screen Industry Workers Act last year, the government also passed the Fair Pay Agreements Act which restores the ability for unions to negotiate industry-wide collective agreements mostly for employees in the service sector where workers are vulnerable to casualisation.

In the challenging environment of the last few decades the response from many unions, including performers’ union Equity New Zealand, has been to organise. Nearly 80% of Equity’s members earn well below the minimum wage of $42,000 per year from their performance work as independent contractors. However over this time the union’s membership has grown and stabilised at around 1000 members, making it the largest guild in the creative sector. The rate of participation in union activities is high (nearly two-thirds of all the submissions to the New Zealand parliament on the Screen Industry Workers were made by performers) and despite the restrictions on bargaining, the union and its members have been able to influence the working conditions for most areas of performance through the development of standard contracts, guidelines and best practice policies that have been adopted voluntarily for the production of film and television content as well as for live theatre. Examples of these include standardised contract templates, casting guidelines, and the Intimacy Guidelines for Stage and Screen.

The Screen Industry Workers Act came into force on 31^st December 2022 and with it the first protections for screen workers in a very long time. Those protections include clauses to deal with bullying, discrimination, harassment and fair termination being mandatory in every contract for every worker in the industry from the start of this year.

Notwithstanding these protections, the Act has been criticised by some because it prohibits the right to strike and doesn’t restore the right for a worker to challenge their status as an independent contractor, so maintains the ‘carve out’ of the Hobbit Law. The ‘carve out’ requirements were at the behest of some workers in the industry and the limitation on strike action was a requirement from the government when they set up the Film Industry Working Group parameters who wanted to portray the screen sector as industrially stable in an effort to attract overseas investment. The limits on the right to strike during bargaining is offset somewhat by the requirement for good faith in workplace relationships and bargaining and the ability to access mediation, facilitation or arbitration overseen by the government regulator, the Employment Relations Authority. The removal of the right to strike is also a feature of the Fair Pay Agreement legislation.

For Equity, work is now underway to prepare for the industry-wide bargaining for the screen sector and the union has a programme for member recruitment, organising and education to support the negotiations and we expect to be in negotiations well before the end of this year.

In the meantime, the Screen Industry Workers Act stands as a template that could easily be adapted to give other atypical workers in other industries improved labour rights. In December 2021 another tripartite working group delivered recommendations to the government to improve contractors’ labour rights and clarify their classification and the government has yet to act on them. In the meantime employment law cases are setting precedents, most notably drivers for rideshare company Uber won a legal case with the Employment Court last year which determined that they were employees rather than genuine contractors – although that is now being appealed to the Supreme Court for a final determination.