Hard News by Russell Brown

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Hard News: Anatomy of a Shambles

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  • BenWilson,

    I was actually happy to see John Barnett express sympathy for Robyn. She's a fine actress, and he clearly doesn't want to see her thrown to the wolves.

    In the YouTube clip of the crew badgering Whipp for answers, I thought RM was the only one who even tried to do the right thing, to stop and say something to the crowd. They didn't want to hear from her, though, because she's a minnow in this debate, and the big fish was staunchly marching only 2 meters away, face set in grim/arrogant resolve. She could be a good front person if the lines were straight.

    Auckland • Since Nov 2006 • 10657 posts Report Reply

  • FletcherB,

    I wonder how much her 'brand' has been damaged by this episode.

    I predict that if The Hobbit does indeed get made in NZ.... it will all wash over and the public will be happy to see Robyn in movies, TV, or on stage...

    If it goes..... she'd better pop over to Aussie if she wants work in the next five, maybe ten years?

    West Auckland • Since Nov 2006 • 893 posts Report Reply

  • webweaver,

    But pretty much every commentary on the case suggests that this was an atypical example.

    Yeah I get that, but when I actually looked at the differences and similarities between the 3ft 6 case and actors in general in relation to contractor/employee guidelines, I got a bit stuck.

    From the Dept of Labour website:

    Indications of being an employee

    If all or most of these features are present in a work relationship, it is likely to be an employment relationship between employer and employee:

    * the intention of the employer and employee is to form an employment relationship, and this is shown in any written agreement or correspondence and/or by the behaviour of the parties to it
    * the employer or their agent controls the hours worked
    * the employer or their agent has the power to hire and fire
    * the employer makes the profit or loss from the enterprise
    * the employer deducts ACC premiums and PAYE tax on behalf of the employee
    * the employer owns or leases the equipment needed
    * the employee is bound to one employer at a time and is expected not to compete or offer his or her skills to competitors of the employer.

    Indications of being a self-employed contractor

    If all or most of the following features are present in a work relationship, it is likely to be a contract for services involving a self-employed contractor:

    * the intention of the parties to the contract is not to form an employment relationship, and the actual nature of the relationship reflects this
    * the contractor controls how and when the job is done
    * payment is made in a lump sum at the end of a job, or in instalments as progress is made on the job
    * the contractor can choose who does the job and can hire other people without approval from the other party
    * the contractor pays any tax, ACC and insurance directly
    * the contractor can make a profit or suffer a loss directly
    * the contractor supplies equipment and materials
    * the contractor is free to accept similar work from a number of sources at the same time

    I would say actors have a mixture of the two:

    * the intention of the parties to the contract is not to form an employment relationship, and the actual nature of the relationship reflects this (contractor)
    * the employer or their agent controls the hours worked (employee)
    * the employer or their agent has the power to hire and fire (employee)
    * the employer makes the profit or loss from the enterprise (employee - although I guess you could say that residuals are a reflection of sharing in at least some of the profit, which would be more like a contractor)
    * payment is made in a lump sum at the end of a job, or in instalments as progress is made on the job (contractor)
    * the contractor pays any tax, ACC and insurance directly (contractor)
    * the contractor supplies equipment and materials (contractor - assuming you mean the actor's voice, face and body. If you include the fact that they also need a set, makeup, costume and props in order to do their job, then no - the studio provides these)
    * the contractor is free to accept similar work from a number of sources at the same time (contractor)

    And IMO there are a couple of biggies that define a contractor, and which actors definitely don't have - namely:

    * the contractor controls how and when the job is done (I can see the how - if they have an understanding director, that is - but definitely not the when)
    * the contractor can choose who does the job and can hire other people without approval from the other party

    I originally thought maybe the ultimate measure of an actor being different from James Bryson was that one could argue that once an actor's role in a movie is complete, there is no guarantee that the next movie a studio makes will require the same actor in another role.

    In contrast, one might be able to argue that every movie will need models, and therefore every movie will need model-makers and therefore the skill that James Bryson brought to Weta and 3ft6 was a skill that had ongoing relevance to the studio and could be used on multiple movies, but that's still a bit of a stretch.

    The ultimate decision by the Supreme Court was made by comparing the DoL employee criteria with the contractor criteria and seeing on which side James Bryson fell - not by looking at whether he might be useful to 3ft6 on an ongoing basis.

    Wellington • Since Nov 2006 • 332 posts Report Reply

  • Petra,

    At last someone notices the sexism of this whole saga.

    What utter crap. Is he on 'shrooms or something?

    Jeepers!

    Rotorua • Since Mar 2007 • 317 posts Report Reply

  • Glenn Pearce,

    Regarding the employee/contractor thing, there's already exceptions to the rules eg: Sharemilkers, Real Estate Agents so won't it be fairly straightforward to add another exception for Hobbits ?

    Auckland • Since Feb 2007 • 504 posts Report Reply

  • Geoff Lealand,

    Rudman's column is long on sound and fury, and very short indeed on facts and insight.

    But can you not say the same about the whole damn thing? Rudman is likely to inflame passions but haven't we already had too much over-heating on this issue?

    If there is to be an ultimate villain (and the MEAA/AE involvement may become a bit of a sideshow), it could well be the international currency war, which is pushing the $NZ to a a level where it is increasingly unlikely that US mega-corporates will look to NZ to shoot runaway productions.

    Screen & Media Studies, U… • Since Oct 2007 • 2562 posts Report Reply

  • SteveH,

    The fact that it takes several days for everyone to say "ok ban off guys" is simply evidence that it takes time for the message to get there and people in the right positions to sign off. For Warners to say "NZ has called off the ban but Canada/UK haven't" or whatever, is mischevious.

    Warners never actually said that.

    The people who were refusing to work were the actors - the ban is not off until the actors know that it is off. All the evidence points to the actors being informed on the 20th, so the ban wasn't lifted until the 20th. If Warners wanted to sign someone on the 18th from AE (USA) they wouldn't have been able to as neither the actor nor AE (USA) had been informed that the ban had been lifted at that point.

    Since Sep 2009 • 444 posts Report Reply

  • Craig Ranapia,

    At last someone notices the sexism of this whole saga.

    @Hilary: You're taking the piss right? Brian Rudman should leave the man-tronising concern trolling to Garth George.

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

  • Sacha,

    The MEAA factsheet claims they had legal advice "that there are a variety of lawful means which could be used to establish the minimum wages, working conditions and residuals for performers on the production". Was that advice accurate, incorrect or misinterpreted?

    I believe Russell wrote about this in one of the earlier threads. There are some ways that the employment/contracting relationships *could* be configured within existing law. They may not have been particularly workable but it's a fair position to take that things were not quite so black and white as SPADA or the producers have been asserting. Both sides had their legal advice, and then the government provided theirs.

    However, it doesn't excuse the poor negotiating tactics or lack of clarity from the actors' representatives throughout. How does calling a boycott before you talk fit within any definition of good faith bargaining? Unless that's common in Australia - Whipp did say something about assuming that the ban would produce a quick response.

    Ak • Since May 2008 • 19743 posts Report Reply

  • Islander,

    Andin - thanks for that link: it is truly interesting research (and way more important than hopiti stuff.)

    Big O, Mahitahi, Te Wahi … • Since Feb 2007 • 5643 posts Report Reply

  • Sacha,

    They specifically do NOT say "re-negotiate the pink book" but that is what the words they do say actually mean.

    I recall Helen Kelly saying SPADA had agreed to consider the way the conditions were implemented, not just what they were. She said something like 'the content and form' of the conditions (too busy to go back and look it up).

    That seems more like what the actors say they were seeking for the previous couple of years - more certainty, just like the big producers are asking for now.

    Ak • Since May 2008 • 19743 posts Report Reply

  • webweaver,

    Rudman is full of shit.

    Down with the evil actors for asking for another plate of soup, they [the people at the rallies - including me] chanted. Off with the heads of the dastardly Aussie manipulators. The union leaders were simple womenfolk who should be back in the kitchen where they belong....

    ...Few [New Zealanders] would have known how they came to have the public holiday that freed them for the day to indulge in their union-bashing activities...

    ...There they were, saying, "Tell us how long to grow our elven beards, and how hard to pull our forelocks, Sir, and we will do it. Straight after we burn those evil witches, Robyn Malcolm, Jennifer Ward-Lealand and Helen Kelly, in the public square for disturbing the tranquillity of our feudal land."

    Man, this pisses me off.

    If he'd bothered to look at any of the multiple videos online of the rallies (not demonstrations - there's a difference) he's have seen that the one and only reference to unions came from PJ in his letter read to us by Richard Taylor, in which he said:

    "We don't open the doors to an Australian union... who destroy everything we have worked to build."

    He said the intervention by Australian-based union Media, Entertainment & Arts Alliance (MEAA) risked tearing apart "the great big heart that beats inside all our films".

    "Turning us into another state of Australia under the sway of a destructive organisation carries the very real risk of destroying the great big heart that beats inside our films.

    "As an industry we are perfectly well-equipped through our various guilds to provide excellent terms and conditions for our film workers. If there are problems, it is up to us to use our guilds to resolve them."

    Not a single other person who spoke even mentioned unions, and no-one - not a single speaker - had anything negative to say about the actors themselves.

    Not a single person at the Wellington rally I attended did any chanting - not against actors, not against unions - and every single placard and banner bar one was positive about NZ, The Hobbit, PJ, film-making in NZ etc - there was one anti-union one at the very back (I've seen a photo of it) but all the rest were positive and aimed at showing Warner Bros how positive we are about our fledgling film industry and the suitability of NZ as the place to film the Hobbit.

    Rudman's rant does not have any remote relationship with the truth of the Wellington rally - either in spirit or in terms of the actual facts.

    Wellington • Since Nov 2006 • 332 posts Report Reply

  • Marcus Turner,

    @Islander

    He hoha he haruru hopiti?

    Since Nov 2006 • 212 posts Report Reply

  • Islander,

    Hoha definitely Marcus (I find double-vowel orthography confusing sometimes...)

    Big O, Mahitahi, Te Wahi … • Since Feb 2007 • 5643 posts Report Reply

  • Russell Brown,

    Rudman's rant does not have any remote relationship with the truth of the Wellington rally - either in spirit or in terms of the actual facts.

    And sadly, it does not do justice to his reputation for understanding the issues he writes about.

    Auckland • Since Nov 2006 • 22849 posts Report Reply

  • Marcus Turner,

    @I

    Kua rerekee (see what I did there?)

    Since Nov 2006 • 212 posts Report Reply

  • Craig Ranapia,

    And sadly, it does not do justice to his reputation for understanding the issues he writes about.

    @Russell: What do you think are the odds of Rudman writing a column in solidarity with his comrades the next time there's industrial action at the Herald? Low or nil?

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

  • rodgerd,

    * the contractor pays any tax, ACC and insurance directly

    In most of the contracting I was doing a couple of years ago all three were pretty much pre-requisites from potential clients, precisely because they didn't want to get bitten in the arse. One wanted to sight my liability insurance for that very reason.

    Wellington • Since Nov 2006 • 512 posts Report Reply

  • Russell Brown,

    I recall Helen Kelly saying SPADA had agreed to consider the way the conditions were implemented, not just what they were. She said something like 'the content and form' of the conditions (too busy to go back and look it up).

    "We're not just discussing the content but the form," or something. To be honest, I think that's spin. NZAE wholly rejected having anything to do with the Pink Book two years ago.

    I'm still waiting for them to do the basics and at least provide a list of real-world examples to back up their claims about the Pink Book not being adhered to. It may well be true, but they needed to provide coherent evidence of it to put the ball in Spada's court -- and in the court of public opinion, to mix my, er, court metaphors.

    Auckland • Since Nov 2006 • 22849 posts Report Reply

  • Petra,

    I'm completely insulted by Rudman's view.

    The only reason there weren't more men being rightfully pilloried in this saga is because there weren't more men involved. Whipp was the only one, and he got his too. So, nope, no sexism.

    And the union bashing? Ummm, I generally support unions, I think they have advanced western civilsation hugely, and I think there is a place for them today. Without a doubt. Does this mean I have to support every union in every action? No, it does not. I'm not a blind ideologue, ffs - each on it's own merit. Like the women. And the men.

    Rotorua • Since Mar 2007 • 317 posts Report Reply

  • Islander,

    dble.vow.orth. and ran the phrase as a word?

    Big O, Mahitahi, Te Wahi … • Since Feb 2007 • 5643 posts Report Reply

  • Sam F,

    Did anyone else catch the RNZN coverage of this issue on Sunday morning and early Sunday afternoon?

    Don't have time to access the podcasts right now, but I wasn't overly impressed with what I heard - a fair bit seemed to be a diversion into the history of global unions and syndicalism - interesting, yes, but a diversion nonetheless.

    Auckland • Since Nov 2006 • 1611 posts Report Reply

  • Ian Dalziel,

    Class traders...

    Warners will ensure that the American Health System is available to us all and give us July 4th as a holiday. <

    ...and instigating Halloween as an official holiday!

    Speaking of Truck n Trout I saw a big trout in the Avon today, by the Stanmore st bridge...
    reassuring somehow...


    give 'em an inch...
    I'm confused, is 3 foot 6 a different company to
    3 foot 7 or are we selling one of them short?


    it's all a bit icke...

    He'd have to have never read it to get that out. I can't think of a single peasant actually referred to anywhere in it, nor anything about feudal lives.

    I thought it was simple parable on the eternal struggle between our agrarian forebears and their reptilian overlords...

    Christchurch • Since Dec 2006 • 7953 posts Report Reply

  • Angus Robertson,

    That seems more like what the actors say they were seeking for the previous couple of years - more certainty, just like the big producers are asking for now.

    Its pretty standard practice to declare victory after an engagement. There are never any routs, only strategic withdrawls.

    Auckland • Since May 2007 • 984 posts Report Reply

  • Jonathan King,

    I'm still waiting for them to do the basics and at least provide a list of real-world examples to back up their claims about the Pink Book not being adhered to.

    Well, they say in their letter of yesterday:

    "In the past the conditions set out in the Pink Book have been completely disregarded by producers."

    You'd think "completely disregarded" would be pretty easy to give examples of.

    Since Sep 2010 • 185 posts Report Reply

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