The Hobbit law - what does it mean for workers?

Jim Roberts, partner at law firm Hesketh Henry. Photo / Supplied

Opinion

The Employment Relations Act 2000 is set to undergo changes with respect to the status of film industry workers. The amending legislation, the Employment Relations (Film Production Work) Amendment Bill, was introduced to Parliament today under urgency as part of a deal between Warner Bros and Government ministers to keep The Hobbit film production in New Zealand.

The Bill seeks to make film industry workers independent contractors by default, avoiding the definition in current employment legislation of what constitutes an "employee".

Section 6 of the Act requires the Courts to interpret the "real nature" of the work undertaken, by examining how the work is carried out in practice, in deciding whether the worker is an employee or a contractor, rather than simply relying on any defining contractual documentation. The same approach is taken by courts in Australia, the United States, United Kingdom and Canada.

The Bill proposes to change the definition of "employee" by excluding all workers who undertake "film production work", namely all workers who "engage in film production work as an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer or entertainer" or who are "engaged in film production work in any other capacity".

The Bill includes an extensive definition of "film production work" to include work performed or services provided by any performers, all production work from pre-production through to post-production and related promotional or advertising work. Explicitly excluded from this definition is work performed or services provided in relation to television broadcast.

If passed, the new legislation will create a default position categorising all film production workers as independent contractors. This would not prevent parties from entering into employment agreements, but is likely to create a hurdle for workers who want to enter into employment agreements. Employers will be under no legal obligation to offer employment agreements.

The Bill currently has the support of the National Party, Act and United Future's sole MP, Peter Dunn, giving National sufficient support to pass the Bill into law.

Jim Roberts is a partner at law firm Hesketh Henry and specialises in employment law.