The Hobbit: Wingnut vs Unions (Round 2)

Oops! This should have auto-posted days ago, but it's been stuck in my Drafts folder. I'll post it now, and I've scheduled some more posts to appear while I'm on holiday. See you next weekend!

There have been some further exchanges of press releases and articles in the Peter Jackson/Wingnut Films vs the Media Entertainment and Arts Alliance (MEAA) battle for hearts and minds. In my Round 1 post, I focused on breaking down the initial press releases between the two organisations. In Round 2, I want to look at the analyses and comments from The Standard and Kiwiblog to see whether viewing the issue through a more political lens can throw some light on things.

First, though, I might try and summarise my current understanding of the positions of both parties. This is definitely a work in progress and I don't guarantee its accuracy; part of why I'm writing these posts is to try and figure out exactly what is going on here.

The MEAA is representing its New Zealand subsidiary, NZ Actors' Equity. The MEAA's negotiations are intended to provide actors in the production of the Hobbit with access to residuals (dividends) from the film's distribution. Providing residuals for actors appearing in a production is standard international practice. As 'Anonymous' pointed out in the comments to my previous post (and I'm paraphrasing), the New Zealand contract would also give people the protections of employment law (such as minimum wage, right to challenge dismissal etc).

Wingnut Films (through the public face of Peter Jackson) takes the position that the MEAA is no longer a legal entity as it was struck off the Ministry of Economic Development’s (MED) Register of Incorporated Societies last week (source: Screen Hub, via Kiwiblog). Because it's no longer a legal entity, it can't be negotiated with (*).

* Which ignores the fact, if I've got the timeline correct, that 

MEAA was a legal entity in NZ when it issued its August 17 letter.

Wingnut states that if they hire an actor who is a member of SAG (the American-based actors' guild), they honour the provisions in the SAG contract dealing with residuals. Their press release also states:

For the Hobbit, Warner Brothers have agreed to create a separate pot of profit participation, which will be divided up amongst non-SAG actors who are cast in the film. This was not done because of any pressure from Guilds or Unions - it was actually Warners doing the decent thing, and New Zealand and Australian actors will be the principle beneficiaries. SAG members have their pot, and non-SAG members now have theirs.

Finally, Wingnut is also positioning this as a fight for the survival of the New Zealand film industry (or at least its ability to attract big-budget overseas productions to film on location here).

A particular point of contention seems to be the number / percentage of New Zealand actors that are represented by this union. As Svend pointed out in the previous post's comments, there's a standard figure of 80-90 actors, with the initial Wingnut press release estimating the available pool of NZ actors as between 1000 and 2000. An alternative calculation, here, indicates that 588 people identified their occupation as 'actor' in the 2006 census, and the initial Wingnut press release estimates the membership of NZ Actors' Equity as being between 100-200 actors.

There's an attributed quote over at Russell Brown's Hard News post about this that might shed some light on this issue:

"John Barnett told me he suspected the union let its registration lapse (by failing to file reports for the last three years) to avoid having to reveal the size of its membership." (opinion)

And there's one question I still want to know the answer to is, "How much would employing unionised actors with contracts that give them residuals cost The Hobbit production?"

Anyway. On with my cutting and pasting of other people's posts on this subject. IrishBill at The Standard has a nice summary of a particular perspective on the issue ('Union boycotts Jackson'):

I’ve known quite a few film workers over the years, workers who were happy to work long hours for bugger all money when the industry was in its infancy simply because there wasn’t much money about and they were getting valuable experience.


But nowadays the industry has established itself, there’s clearly enough money for Jackson to have his own private jet and international stars are here shooting on a regular basis.

The thing is the terms and conditions haven’t changed – film workers are still being paid peanuts, being treated as independent contractors to avoid employment law, missing out on royalties and being blacklisted if they dare to complain.

...

The man with the $68m private jet and the castle and the millions of dollars of vintage aeroplanes and the knighthood says the union is greedy because it wants a fair deal for its members. And it’s not a matter of him keeping sub-standard work conditions, it’s a matter of national importance!

Digging through the comments thread for insights produced the following not-necessarily-verified observations:

• There were actors in LOTR who were unable to profit properly from their use in the film (for money made from licensing products bearing their image) because there are no effective collective agreeements here.
   
• Since 2006 NZ Actors’ Equity has been an ‘autonomous’ branch of the Media, Entertainment & Arts Alliance and has been an affiliate member of the Council of Trade Unions under its MEAA name. It was struck off the Ministry of Economic Development’s Register of Incorporated Societies last week under its registered name of Media, Entertainment and Arts Alliance.It is therefore an unregistered union under the Employment Relations Act and is therefore legally unable to negotiate a collective agreement for its members. It’s also illegal for Peter Jackson to enter into negotiations with them for the same reason.
   
• You get the impression that there is some pretty significant blacklisting goes on inside the industry. The only real way of fighting that is to do it collectively.
   
• As far as I know there’s been debate for quite a while about the relative lack of unionisation of Kiwis working in the international film and TV industry in NZ (for crews as well as cast). It has been argued that one of the advantages is that things get done quicker because there’s less job demarcation, meaning the crew don’t need to wait for the person/s with the allocated job title to get something done. But the disadvantage is insufficient protections for workers.
   
• It’s not Aussies telling us what to do at all .... The MEAA is the union for actors and similar workers in Australia, who have had a formal alliance with our version here for some time. They act on behalf of our actors at their request, not by way of an imposition.
   
• These actors are employed as independent contractors, which means they have no collective bargaining rights, no rights to holidays, minimum wages etc. It\’s a great way to avoid employment obligations and the reason why Jackson can claim that NZ law doesn\’t allow them to collectively negotiate. Of course, there’s a way around it : they could be employed as employees and then there wouldn\’t be any argument about their right to negotiate.

A comment in a subsequent post at the Standard provides a little bit of historical context

On Campbell Live just now, Bruce Hopkins (actor in Hercules, Xena, LOTR), threw some light on the Jackson-actors’ union issue. It seems it goes back to some time in the 90s when the Nats deregulated unions, and set a minimum limit on the number of members needed to form a union. The actors’ didn’t have enough members to be a union & have tried attaching themselves to other unions in the past. But this wasn’t very satisfactory because they were attached to unions they had nothing in common with. So, then a key leader put out a call for a union to affiliate with in Melbourne, and MEA responded.

So, basically, they have a history of not being able to negotiate bottom-line conditions of employment. This issue pre-dates LOTR. And Kiwi actors are about the only ones in the world who haven’t been able to negotiate a basic agreement.

... which was contested in a subsequent comment:

I think Bruce should stick to the acting (which he’s rather good at) because his history is FUBAR. He might start by asking someone at the CTU to send him a copy of the Employment Relations Act – which was passed by the Fifth Labour Government.

More interesting opinions, this time from Russell Brown at Hard News:

The present unrest seems to have begun with this letter last October from the US-based Screen Actors Guild, which reiterates the SAG's Global Rule One and states that a New Zealand or Australian performer must be covered by either a SAG or an MEAA agreement to work on a New Zealand production.

The conspiracy theory, which I heard yesterday from one producer, is that the SAG is looking to protect its own members by preventing so-called "runaway productions" in Australia and New Zealand. They've succeeded in Australia, the theory goes, and now they're turning to New Zealand.

And finally, Gordon Campbell summarises the 'employee' versus 'independent contractor' dynamic nicely in his post at scoop.co.nz. I'm going to excerpt large chunks of it here, because (again) I think it helps build a broader historical context for what's going on:

According to Spada (the NZ producers association), it is against the law to enter a collective agreement with the ‘independent contractors’ that comprise the sector, and industry practice has been known to everyone (and set out in the so-called industry ‘Pink Book’) for the past 15 years.


This is a debatable version of history. In reality, the people insisting that the sector is comprised of ‘independent contractors’ are the producers themselves. The Jackson productions have been instrumental in fostering that climate – and yet now, if you believe Spada, they feel bound by a situation that enables them to require workers to manage their own tax affairs, arrange their own insurance, and qualify for no penalty rates for working at night, or on weekends or public holidays?

Conspicuously, Spada has failed to mention the case of James Bryson, an ‘independent contractor’ on LOTR who duly signed papers to that effect. After he was dismissed, Bryson asked the courts to enable him to pursue a personal grievance case. Despite the existing paperwork that Bryson had signed, the lower court found – and this was later backed up by the Supreme Court – that the determining factor was the reality of the employment situation, and not the paperwork. Bryson, the courts decided, was really in an employee situation – and thus, he could use the personal grievance mechanisms available to him under our industrial law.

That’s very relevant to the current dispute. Because it means that if the employment situation really is an employee one in most or all respects, the mechanisms open to employees – such as collective bargaining – should be available. This leaves Jackson with at least a couple of options. He could volunteer to waive the demand that the people he hires accept the (arguably, bogus) status of ‘independent contractor’ and start treating his workers onset as what many of them would seem to be in practice : namely, employees. Or short of that – he could recognise that the contractors can negotiate collectively with his Three Foot Seven company over conditions on The Hobbit – and this, arguably, can be done legally if done openly, and without the aim of carrying out wage and price fixing within a negotiated market.

OK, there's lots of lots of links and extracted comments and quotes there. What are your thoughts on the above? I'm going to mull over it for a while, and try and bring it all together after I get back from my holiday. In the meantime, I'll be setting the blog to auto-post some book and music reviews.