Existing contracts must be brought up to standard of new legislation
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Although the National party did not support the Act, the new Government has not indicated that the Act will be repealed or substantially amended (and neither coalition agreement makes any mention of the Act).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.
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.
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:
The Act also sets out process requirements that must be followed when entering into (or varying) contracts with screen production workers, including:
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.
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:
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).
