Hard News by Russell Brown

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Hard News: Anatomy of a Shambles

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  • rodgerd,

    This has become a real problem, and I don't think it actually helps get roles for NZ Equity members. It just makes production companies think there must be easier places to work.

    Well, it's not like New Zealand is teeming with internationally-known starts of the sort that cause financiers to stump up the cash necessary to fund movies.

    Wellington • Since Nov 2006 • 512 posts Report Reply

  • Pat Hackett,

    Let's face it. Movie studios didn't come to NZ becuase of our acting talent. They came here because of the creativity of the likes of Jackson/Taylor etc, and because NZ film crew are more cost effective i.e. they multi-task and work their arses off without complaint.

    Auckland • Since Oct 2010 • 95 posts Report Reply

  • Petra,

    Look, let's get one thing straight. Film work pays well.

    Oh, I agree. Just trying to point out to Brendon that whatever he thinks of film industry workers - there are high paying and highly skilled specialist jobs that he's obviously not prepared to consider. To him it's all low paying slave labour, it seems.

    Rotorua • Since Mar 2007 • 317 posts Report Reply

  • nzlemming,

    Got some particularly nasty emails as a result too.

    Really? That sucks. What he said was spot on.

    Waikanae • Since Nov 2006 • 2937 posts Report Reply

  • nzlemming,

    "Under the SAG Basic Agreement, producers must contribute 13.8% of actors' salaries to the Pension and Health Fund." ['Global Rule One: SAG's Answer to Runaway Production', Kathryn Pietrolungo, Brian Tinkham]

    True but irrelevant. That is nothing to do with the residuals. As I understand it, MEAA takes 15% of the money due to actors from the residuals on a movie just for providing the service of collecting it from the producers and distributing it quarterly. Which means they have the use of that money for months as well as the commission.

    Waikanae • Since Nov 2006 • 2937 posts Report Reply

  • Craig Ranapia,

    Look, let's get one thing straight. Film work pays well.

    Well, yes, I'm sure it sounds awfully impressive that I get paid $120 gross for twenty minutes work (i.e. the maximum time it takes to record my PAR pieces). Sadly, its not a $360 a hour full-time job, but I know what I signed up for and job security isn't part of the deal. (For that matter, there's no guarantee Radio Live won't dump PA Radio or NZOA decide to pull our funding, which is pretty much the same thing.)

    This has become a real problem, and I don't think it actually helps get roles for NZ Equity members. It just makes production companies think there must be easier places to work.

    It's also a little rich, considering how many Kiwi actors have been paying the bills by stealing bread out of the mouths of Australian television actors for decades. I'm also reasonable confident Melanie Lynskey, Cliff Curtis, Charles Mesure, Jermaine Clement, Martyn Coskas, Karl Urban and Lucy Lawless would take extreme umbrage at being called foreign scabs.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Jacqui Dunn,

    Maybe a moot point, but if residuals don't kick in until 2 years after cinema release*, there probably won't be that much money to pick up, for anyone.

    *Which, as I understand it, is what Jackson was offering.

    Deepest, darkest Avondale… • Since Jul 2010 • 585 posts Report Reply

  • Kumara Republic,

    @Peter Cox & RB: so the whole thing looks a bit like Union vs Union to me. It's not without precedent - "yellow union" vs "red union" conflicts are older than radio. But somehow I don't see any yellow unions at play in the Hobbit war.

    The southernmost capital … • Since Nov 2006 • 5445 posts Report Reply

  • Petra,

    Seems to me that actors should be taking action against their unions...

    Rotorua • Since Mar 2007 • 317 posts Report Reply

  • Jacqui Dunn,

    @ Craig: Without going into tiresome details, I'm thinking of the crews who are on call during the whole of a shoot. Who might work a 12 hour day, or even longer, six days a week, rain, hail or shine.Their weekly pay packet will be substantial.

    Someone who comes in, say a make-up artist doing some special work, might work a four hour day, but be on call over the length of a shoot. Or something:))

    Deepest, darkest Avondale… • Since Jul 2010 • 585 posts Report Reply

  • Andre Alessi,

    Maybe a moot point, but if residuals don't kick in until 2 years after cinema release*, there probably won't be that much money to pick up, for anyone.

    On the contrary, that's usually when "Special Collector's Edition" type releases start happening. Different rules for a blockbuster with a fanbase than for most films.

    Devonport, New Zealand • Since Nov 2006 • 864 posts Report Reply

  • Pat Hackett,

    @ Jacqui Dunn. You are correct. But NZAE were wanting Jackson to implement the MEAA contract - a higher residual amount, paid earlier. With MEAA in control of collection and distribution of the residuals.

    Their fallback negotiating position was probably accepting the lower residual conditions offered by Jackson, but still securing control with an MEAA contract, thus setting a precedent for all future NZ productions.

    Their actual end-game position has been little more than discussions with Spada over the pink book, massive egg on their face, and everyone running for cover.

    Auckland • Since Oct 2010 • 95 posts Report Reply

  • nzlemming,

    Apologies to Graham Dunster, as I have only just checked my email.

    Here is the OCRed text of the PDF and here is the PDF itself (thanks Jaymax)

    BACKGROUND INFORMATION
    You are no doubt aware of the recent public eruptions between the
    producers of The Hobbit and the MEAA, which is attempting to insert
    themselves into discussions between New Zealand Actor's representatives and Three Foot Seven acting on behalf of The
    Hobbit.

    In 2006 Actor's Equity (NZ), whose membership at that time had
    dwindled to around 80 actors, decided to take up an offer by the
    Media and Entertainment Arts Alliance (MEAA) to become a branch
    of the larger and more powerful Australian trade union. The MEAA represents Australian sports people, journalists, performers and
    actors. In doing this, NZ Actor's Equity essentially forfeited their independence to the MEAA, a trans-Tasman trade union which
    has no legal standing in NZ . (MEAA/Actor's Equity is not registered
    as an NZ trade union, nor are they on the register of incorporated
    societies.)

    With the announcement of casting beginning on The Hobbit rumors
    began circulating that the MEAA had made the decision to 'target' The Hobbit in order to leverage more support for their union and strengthen their position within the Australasian film industry. It was speculated that_MEAA management recognized that it was in their best interests to lock down NZ actors so that they could not
    form a competing pool of talent which could make themselves
    available to Australian producers and large budget overseas
    productions. The MEAA, of course, have every right to pursue this
    strategy - it's smart, if somewhat ruthless - but in doing so and
    in placing their own best interests first, they don’t seem to care
    that they are putting the entire NZ Film Industry at serious risk
    of collapse. They are jeopardizing the livelihood, not only of NZ
    actors, but also of crew, post production workers, and industry
    support personnel. Hundreds, if not thousands of jobs will be lost.

    For the last several months, Simon Whipp (director of NZ Equity
    and secretary of the MEAA) has openly stated that the MEAA intends to use The Hobbit to assume control of all NZ actors' contract
    negotiations. By leveraging the support of more powerful unions
    like SAG, the MEAA has stated as its intended aim of 'forcing the
    Producers of The Hobbit, to the bargaining table in order to enter
    into a union negotiated agreement. The problem with this course
    of action is - it is illegal.

    However, the MEAA is insisting on collectively bargaining wages
    and conditions for all NZ actors who will be engaged to work on The Hobbit, irrespective of their status as independent contractors under the law. In a nutshell, it is illegal for independent contractors to collectively wage bargain in New Zealand. Under New Zealand law (refer the Commerce Act of 1986, section 30) New Zealand actors are independent contractors and are therefore not permitted to engage in 'price fixing'.

    Most kiwi actors, almost without exception, choose to be independent contractors because it carries enormous advantages
    the three most notable being (i) you pay less tax; (ii) you have
    the ability to claim back your Agent's 10% fee (iii) you can charge
    your services out at a higher rate.

    The MEAA's proposed answer to getting around this legal restriction
    is to change the tax status of Kiwi actors from independent
    contractors to 'employees', a suggestion which is both absurd and
    untenable, as supported by legal opinions from the NZ Government's
    own Crown Law Office. Most NZ actors are employed on films for very limited periods of time, on short term contracts. The idea of hiring actors on the basis of being 'permanent employees' is ridiculous
    because films don't offer permanent work. But this is the only way
    MEAA can legally operate in New Zealand so it is what they are
    advocating

    The MEAA's legal advice is that the entire NZ cast of The Hobbit
    would have to form a legal joint venture with the film makers and
    studio in order to have their collective bargaining status
    recognized. It also offers a complex argument that all NZ_actors
    would have to be employed under the same terms and conditions
    including salary, for the MEAA negotiation to be legally admissible. How this can possibly work?

    A legal opinion from Peter Churchman, one of New Zealand's top
    senior employment lawyer, states that the Simpson Grierson opinion
    is “artificial and unworkable.” This is one of many legal opinions, including one from the Attorney General as referenced
    above, all of which arrive at the same conclusion: the Simpson
    Grierson opinion is disingenuous and does not reflect the spirit
    of New Zealand employment law.

    One aspect of MEAA's demands is that they are insisting on negotiating the contracts for all NZ actors, regardless of whether
    these actors are members of NZ Equity or not. To put this in context, NZ agents have over 2,000 actors on their books (this number increases to 17,000 if second rung performers are
    included) NZ Equity claims membership numbers of 598, although this
    number has never been independently substantiated.

    If it is a true number, NZ Equity represents roughly one quarter of all performers who are available to work in NZ and yet they claim to represent a majority of all NZ actors. (68% was the number cited in a recent article)

    The producers of The Hobbit are demonstrably not anti union. Peter
    Jackson is a very proud and loyal member of six Unions - the Directors Guild of America, the Producers Guild of America, the Screen Actors Guild of America and the Writers Guild of America, the New Zealand Writers Guild and the Screen Directors Guild of New Zealand and has acknowledged that these organisations do terrific work on behalf of their members.

    To call The Hobbit 'non union' as Simon Whipp has done, is misrepresenting the truth. Warners is a signatory company to SAG
    as well as other worldwide unions and as such their respective
    agreements are all being recognized and fulfilled by the production.

    It is true, however, that some of the actors who will work on The Hobbit will not be members of SAG, especially younger actors and many Australian and New Zealand performers. Residuals can be worth tens of thousands of dollars to an individual, if the film is
    successful however the normal situation is that if an actor is not a member of SAG, they do not share in the residual pot. To this end, Warner Brothers have agreed to create a separate pot of money for Australian and New Zealand actors working on The Hobbit. This money will be divided up amongst all non SAG actors who are cast in the film under a ‘participation rider' which will be part of all cast deals. This was not done because of any pressure from Guilds or Unions, it was an attempt by Warners/New Line to treat actors working on The Hobbit equally and with respect.

    TO SUMMARISE:
    The NZ Equity/MEAA has instigated a worldwide boycott of The Hobbit through members affiliated to FIA (the International Federation of Actors). They are falsely claiming this has happened because The Hobbit is a non-union picture. This is patently untrue. All crew and all cast working on The Hobbit belong to Guilds and Unions. This includes NZ actors. What NZ actors are not allowed to do as independent contractors, is invoke their union to do collective bargaining on their behalf and thereby enter into wage fixing.

    The Hobbit has been branded 'non-union' because under NZ employment law, actors are defined as ‘independent contractors' rather than as ‘employees' and therefore cannot enter into collective
    bargaining. This is a function of NZ employment law, it is not a
    political position adopted by the producers. Simon Whipp has
    accused WingNut Films of being anti-union and it is on this basis
    the MEAA has invoked a worldwide ban on actors appearing in The
    Hobbit. This accusation is not only untrue, it is unfair and unjust
    and the blacklisting of the film is in fact illegal.

    Essentially The Hobbit has been blacklisted by the MEAA because
    the producers of the film have refused to break the law.

    Punishing the production for a perceived wrong that is in actual fact a function of NZ employment law, is grotesque. The MEAA is aware that it has authored this injustice and in spite of NZ Equity now acknowledging that collective bargaining for independent contractors is impossible under New Zealand law, there has been no retraction of the worldwide actor ban and no apology or explanation for the union's behaviour. One must wonder why MEAA/NZ Equity has chosen to behave in this extraordinarily high handed way and what is the extent to which SAG and UK and Canadian Equity have had this situation explained to them?

    The MEAA has been provided with legal opinions, including one from
    the NZ Attorney General which confirms the illegality of their actions. In spite of this, the MEAA is continuing its campaign to be involved in negotiating cast deals for all NZ actors, whether or not they belong to NZ Equity. They have not explained to the producers of The Hobbit how any realistic employment arrangement could possibly work within the confines of the law. The MEAA is not a recognized trade union in New Zealand and has no right to enter into collective bargaining with independent contractors, under any circumstances.

    Nevertheless, it is clear, that if they are successful in steam rolling the law, the MEAA will attempt to redefine independent contractors as ‘emp1oyees' (In NZ employees are collectively represented by trade unions) and if this should happen it will sound the death knell of the NZ film industry.

    If the MEAA are successful, they will forever change the independent contractor status of NZ actors and crew, and this would
    have a catastrophic impact the overall employment structure of the NZ film industry. All film and television work will quickly evaporate.

    Recently Simon Whipp denied making the threat of a boycott against
    The Hobbit, although that threat is clearly in play. Similarly, Whipp has denied branding The Hobbit ‘non-union’ , even though he has issued and authored many releases which say just the opposite. Whipp has implied that NZ actors are treated unfairly by us when
    we have always paid our cast well above SAG minimum rates and complied with SAG contract conditions. He seems to be so hell-bent on attacking the production, he has publically damned Hobbit contracts before they were even written! For example, we have ever given cast or crew notice without severance and yet Whipp implies this is our standard practice on our filmds. We have always treated our actors with fairness and respect; our Hobbit residuals are in fact better than those offered by Canada and elsewhere.

    We have done nothing to deserve the unfettered condemnation of the NZ Equity/MEAA, who in the form of Simon Whipp, have attempted to demonize us in the media.

    WingNut Films' situation is all the more puzzling when another US funded production Spartacus; Blood and Sand, has shot unimpeded in NZ all through 2009 and has just begun shooting a new series as recently as August 2010. Unlike The Hobbit, Spartacus is non-union production and it's cast contracts terms and conditions are inferior to The Hobbit. Spartacus can fire actors without warning, offering no additional compensation. They have the right to re-voice without actor consultation. They offer no residuals.

    The Hobbit cast contracts do not reflect any of these conditions and yet the film has been targeted by Equity and Spartacus has not.
    Why?

    Why didn't NZ Equity/MEAA attempt to collectively bargain better
    wages and conditions for the NZ actors working on Spartacus?

    Could it possibly be because the husband of NZ Equity President, Jennifer Ward Lealand - Michael Hurst - was hired to direct several episodes of the Spartacus series?

    Given that NZ Equity chose to target The Hobbit and given they chose not to target Spartacus, which is shooting for a longer period of time and which is using a far larger cast, working under an inferior
    contract) it is hard to see why The Hobbit was deemed by NZ Equity
    to be a more worthy target.

    Would it not have been proper for Jennifer Ward Lealand as President of NZ Equity, to declare to the NZ film community a professional conflict of interest?

    Has NZ Equity used its power as a union (albeit a union that is
    based in Australia) to unfairly target one production over another
    one?

    It appears to be so.

    Does Jennifer Ward Lealand, as president of NZ Equity and dedicated union leader, have a problem with her husband shooting a non-union, US television series in NZ?

    It would appear she does not. NZ Equity were more than happy to provide the NZ standard cast contracts to the producers of Spartacus, and yet these are the same cast contracts they have
    publically damned.

    The MEAA too, have been curiously silent about Spartacus.

    Perhaps they have bigger fish to fry?

    Perhaps, in the end, this is not about Actor's Equity, nor is it about The Hobbit.

    Perhaps it is about an Australian trade union making a blatant play
    to take a controlling hand in the NZ film industry - in order to steer lucrative work back across The Tasman, where Australians would prefer it to be.

    Waikanae • Since Nov 2006 • 2937 posts Report Reply

  • Craig Ranapia,

    @ Craig: Without going into tiresome details, I'm thinking of the crews who are on call during the whole of a shoot. Who might work a 12 hour day, or even longer, six days a week, rain, hail or shine.Their weekly pay packet will be substantial.

    Sure, but my point is that that those figures are "substantial"... until, perhaps, you've got to stretch it out six months until the next job comes along. And that's true whether you're gluing down Gandalf's beard in Miramar or Connemara. Kind of depressing listening to Matthew Hooten being paitently man-splained why its not particularly helpful saying "but that's over a quarter million dollars a year." You'd think a freelance spin doctor (bottom line dependent on the size of his client list) would know that better than most.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Peter Cox,

    Sara Wiseman attended the rally.

    Good for her!

    Got some particularly nasty emails as a result too.

    That really is very troubling.

    Auckland • Since Nov 2006 • 312 posts Report Reply

  • Sue,

    if i'm correct on radionz simon whipp said he wants the law to change in nz so actors can collectively bargain

    so isn't that also saying what he was asking for was as peter jackson said illegal to do?

    Wellington • Since Nov 2006 • 527 posts Report Reply

  • 3410,

    I posted a very annoyed comment on that [Holmes] article - didn't get published, probably a bit too pointy.

    Pointier than this, Jaymax?:
    ;)

    I hope you walk down my street one day (in Australia) so I can punch you on the nose you NZ 'filth'.

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • Andre Alessi,

    And that's true whether you're gluing down Gandalf's beard in Miramar or Connemara.

    Tangentally, I know one of the women who did actually glue down Gandalf's beard, or close enough for jazz. Were the long days and rough conditions a trial? Sure. Would she do it again? Absolutely.

    Devonport, New Zealand • Since Nov 2006 • 864 posts Report Reply

  • Peter Cox,

    if i'm correct on radionz simon whipp said he wants the law to change in nz so actors can collectively bargain
    so isn't that also saying what he was asking for was as peter jackson said illegal to do?

    I think what he was saying (and I can't remember his exact words) is that he wanted the legal status changed for unions to be able to negotiate on behalf of collective contractors in specific circumstances, as was done recently in Ireland. (currently they can only enter legally binding agreements on behalf of 'employees')

    But yeah, as Russell says: nice idea he should have had two years ago.

    What warners are apparently concerned about is the 'bryson case' where an independent contractor was effectively working as an employee and then was able to turn around and sue at the end of his employment when his contract was over, for 'unfair dismissal' and unpaid holiday pay etc. He quite rightly won that case, but as far as I can tell the legal precedent really has little to do with the situation actors will find themselves in over the course of the Hobbit.

    I can see why Warners might be concerned they might get sued by hundreds of people at the end of all this. However, I suspect the final legal opinion would be that a law change should not be necessary because the previous bryon precedent would not apply.

    So I suspect that's why various people are saying a law change is unnecessary, because Warners really have nothing to worry about in that regard.

    On the other hand, the government might be looking at toughening up the law in terms of more strictly defining who is an independent contractor and who is an employee through some specific tests, which you're forced to go along with. It's probably safe to say those tests wouldn't put actors on the 'employee' side of the line. That legislation could possibly cause all sort of extending problems in the wider workforce though.

    Auckland • Since Nov 2006 • 312 posts Report Reply

  • rodgerd,

    That's quite a pointed piece, nzlemming.

    Wellington • Since Nov 2006 • 512 posts Report Reply

  • Sofie Bribiesca,

    "It's a fairly heavy duty team that's actually come down to New Zealand and I think that's actually a good thing," Mr Key told Breakfast on TV One.

    "If they were just coming to say 'no' then they wouldn't bother actually to send such a senior team."

    However, they would still come down, spending vast sums on lawyers to say, not pay double time in lieu, when to just do so would be considerably less.

    Seems to me that actors should be taking action against their unions...

    Well,that would be about as helpful as thinking Key has an interest on behalf of the workers here.

    The reality is we don't make a lot of money out of this movie, the (tax) breaks are any where between $60 million and $80m at the moment which is a 15 percent subsidy. Essentially what that means is it is a wash from the Government's point of view, what we earn we give back to them."

    NAT MACT don't notice the actors in this equation.

    One area the Government was willing to look at was amending the definition of a contractor following a successful court case where former Weta Workshop model maker James Bryson was deemed to be an employee, not a contractor.

    See,the government will stop that happening again.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Pat Hackett,

    nzlemming asked for this some threads back: From the 2009 MEAA Annual Report:

    In 2009 New Zealand Equity has continued
    to grow in numbers and in strength. Eighty
    five performers have joined their union.

    Our regular Green Room events have been
    well supported by members and nonmembers
    alike – our most recent seeing 90
    performers turn out to hear an industrial
    report from NZ Equity organiser Frances
    Walsh and to be galvanised by president
    Jennifer Ward-Lealand.

    http://www.alliance.org.au/documents/MEAA_2008-09_annual_report.pdf

    Auckland • Since Oct 2010 • 95 posts Report Reply

  • Peter Cox,

    Seems to me that actors should be taking action against their unions...

    If the acting community is unhappy with the leadership of their union, they should lobby to elect a new board that has the full support of the acting community.

    Starting a whole new union or trying to destroy the one they have is just going to lead to the most terrible problems.

    Auckland • Since Nov 2006 • 312 posts Report Reply

  • giovanni tiso,

    Tangentally, I know one of the women who did actually glue down Gandalf's beard, or close enough for jazz. Were the long days and rough conditions a trial? Sure. Would she do it again? Absolutely.

    I see this argument come up time and time again. Surely the point of unions is to raise working conditions and wages above the absolute minimum that one would work for? I'd do my job for less money and worse conditions, especially if I was cornered into a take it or leave it situation... but surely we can aspire to improve on those bare minimums? Otherwise the "will work for free" placard will become something to aspire to.

    (I can see how this particular union action was misdirected and why it was ultimately unsuccessful, I'm talking about the principle.)

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Pat Hackett,

    Simon Whipp is due for re-election for his MEAA position, I see...

    Auckland • Since Oct 2010 • 95 posts Report Reply

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