Time to update contracts with screen production workers

The Screen Industry Workers Act 2022 (Act) came into force at the end of last year, restoring certain employment-like protections to screen production workers, including the right to bargain collectively.  While it may be some time before parties work through the collective bargaining process, other provisions in the Act require more immediate action.

Individual contracts with screen production workers entered into after the Act came into force on 30 December 2022 must include certain mandatory terms.  Also importantly, from 30 December 2023, all existing contracts with screen production workers (including those entered into before the Act came into force) must be brought up to the same standard.

Although the National party did not support the Act, the new Government has not indicated that the Act will be repealed or substantially amended (and neither coalition agreement makes any mention of the Act).  So now is a good time for those affected by the Act to make sure they are familiar with its terms.  A failure to comply with certain provisions of the Act could result in the imposition of penalties for non-compliance of up to NZ$20,000 per breach.

Who is a 'screen production worker'?

In short, a screen production worker is someone who is engaged to contribute to the creation of a screen production in New Zealand.  However, the Act only applies to certain screen productions such as computer-generated games, films, and programmes, and does not apply to advertising programmes of longer than five minutes, amateur productions, game shows, live events, music and dance programmes, news and current affairs programmes, recreation and leisure programmes, religious programmes, sports programmes, talk shows, training and instructional programmes, or variety shows. 

Those who provide support services or who volunteer are also excluded from the category of screen production workers and will not fall under the ambit of the Act.

Individual contract requirements

The Act imposes new obligations on those who contract with screen production workers (referred to in the Act as "engagers," which would include screen production companies).  Engagers have until 30 December 2023 to update existing contracts (subject to a narrow exception) and bring them into line with the requirements set out below.

The Act requires that individual contracts are in writing, and include the following mandatory terms:

• Compliance at all times with the parties' respective obligations under the Health and Safety at Work Act 2015 and Human Rights Act 1993.
• A plain language explanation of the process by which the screen production worker may raise (and the engager respond to) a complaint about bullying, discrimination or harassment in the workplace, and a statement that the process does not prevent the worker from raising a complaint under the Act or any other enactment. In our view, it would be sufficient for the agreement to refer to the engager's bullying, discrimination or harassment policy (provided that this has a process for raising complaints and how they will be responded to).
• A plain language explanation of the processes available for resolving disputes. This can, but does not have to, include those available under the Act.
• The period of notice and compensation payable on termination of the contract (if any).

The Act also sets out process requirements that must be followed when entering into (or varying) contracts with screen production workers, including:

• Advising the worker that they are entitled to seek independent advice and giving them a reasonable opportunity to do so.
• Considering and responding to any issues raised in good faith.
• Providing the screen production worker with a copy of their individual contract (or the varied contract) as soon as practicable after it is entered into (or varied).

Good faith in workplace relationships

The Act introduces an important requirement that the parties to a "workplace relationship" (which include screen production workers and their engagers) act in good faith when dealing with one another.  This is a narrower duty than in the employment context (which includes proactive actions), as the parties are only required not to, directly or indirectly, do anything to mislead or deceive each other, or that is likely to mislead or deceive each another. 

However, additional good faith duties apply in the context of collective bargaining, and are similar to those that apply to bargaining in an employment context.

Collective bargaining

Perhaps most significantly, the Act gives screen production workers the right to bargain collectively for minimum terms and conditions, which once ratified, set a base level for their individual contracts.  Although no collective contracts have been entered into as of yet, some parties have already registered as "worker organisations" (unions) in preparation for bargaining.

Other new collective bargaining protections include:

• As above, the requirement on parties to act in good faith while collective bargaining, which includes continuing to bargain on outstanding matters, recognising the role and authority of any bargaining representatives and not doing nothing to undermine the bargaining.
• The inclusion of certain mandatory terms in collective contracts that deal with pay, breaks, public holidays and hours and availability for work.
• A requirement that membership of a worker organisation or engager organisation must be voluntary (akin to voluntary membership of unions).
• A prohibition on preferential treatment on the basis of worker/engager organisation membership (akin to the prohibition against unlawful preference in the employment context).

However, industrial action is prohibited during bargaining if it is intended to undermine or affect the outcome of the bargaining - which is the usual reason for any such action.  Mediation and facilitation are available, and a party can apply to the Employment Relations Authority to fix disputed terms.

Philip Wood is a partner, Sherridan Cook is a partner, Keri Johansson is a senior associate, and Tasha Ioelu is a senior solicitor, all at Buddle Findlay in Auckland. This article was co-authored by Olive Brown (solicitor) and Alex Morimoto (solicitor).