Following on from the recommendations of the Film Industry Working Group in October 2018, Parliament has now introduced the Screen Industry Workers Bill to Parliament on 18 February 2020.
The Bill proposes to repeal the carve-out sections (ss 6(1)(d) and 6(1A)) of the Employment Relations Act 2000 which specifically exclude film production workers from being an employee and replace them with more detailed definitions of “screen production worker” and “screen production”. It provides that people doing screen production work are employees if they are party to or covered by a written employment agreement specifying they are an employee, and therefore covered by employment law. This change would create three scenarios:
screen production workers who meet the definition of being such in the Bill would be employees if they are party to a written agreement specifying or covering them as employees
screen production workers who meet the definition of being such and are not party to or covered by a written agreement specifying them as employees would not be capable of being classed as an employee regardless of the nature of the relationship in substance. However, such workers would still have greater rights than normal contractors, by having access to quasi-employment type rights contained in the Bill specifically for screen production workers — such as collective bargaining rights, and
for any workers in the screen industry who do not meet the Bill’s definition of a screen production worker, the determination as to whether or not they are an employee in substance (irrespective of what any written agreement describes them as) would be determined as an assessment of the “real nature of the relationship” in accordance with s 6 of the Employment Relations Act 2000 as is the case currently for any other type of worker.
Where a screen production worker is a contractor, the Bill recommends a parallel set of quasi-labour laws governing the relationship between the contractor and the screen production company. The proposed labour laws include obligations of good faith between the parties. They also include a requirement for certain mandatory terms to be contained in all written individual contracts between the contractor and the screen production company. Such terms include a process for dealing with bullying, harassment and discrimination complaints as well as what the notice period for termination is and payment in respect of such.
The Bill proposes a collective bargaining framework to apply for facilitating collective bargaining between screen production workers and screen production companies. This will provide for collective bargaining to be possible at two different levels: at the occupation level (eg for all performers, writers) and at the enterprise level (eg within a single production company or screen production). In stark contrast to regular collective bargaining, the Bill proposes that the industrial action would be prohibited during collective bargaining.
The commencement date proposed under the Bill is 28 days from the Royal Assent. Therefore the commencement date is uncertain at this point as the Bill would need to go through the full parliamentary process before reaching that step. However, the Bill proposes a lead-in time to get up to speed with the new laws. All contracts entered into before the commencement of the Bill would have 1 year to comply with the requirement to have a written individual contract that includes certain mandatory terms, and the terms in any applicable occupation-level collective contract.