On the relevance of the latest Hobbit revelations

This morning’s release by RNZ of its OIA requests on The Hobbit is not ancient history.

It offers a rare glimpse into the fashion in which this government “negotiates” with major corporates, and this could hardly be more timely – given the secrecy that continues to surround a Sky City casino deal that (like the Hobbit situation) involves the government being (apparently) willing to scrap existing New Zealand laws and regulations, in order to meet the demands of a foreign corporate.

We’d done this sort of thing before of course, over the change in tax laws to accommodate the Lord of the Rings project. Clearly, the only way that successive New Zealand governments have known how to ‘negotiate’ with Hollywood studios has been to fall to their knees.

Even so, The Hobbit situation is in a class of its own. This was a national embarrassment, from the outset. What the studios wanted was a change to our industrial law – in essence, an overturning of the industrial law distinction between ‘contractors’ and ‘employees’ established by the Bryson case in 2006, which required employers to extend the same rights and conditions as permanent employees to those ‘contractors’ able to demonstrate that their employment conditions were indeed those of permanent staff.

In other words, what the courts had done with the Bryson decision was to prevent the exploitation of people who were, in reality, permanent staff – but who, because of the useful fiction of being deemed to be ‘independent contractors’ could thus be denied sick leave, holiday pay and other normal workplace rights and protections. Warners wanted to return things to the previous condition of exploitation, and the Key government were happy to comply.

Not that the case of Bryson – who was not an actor – was in any way central to the decision to make The Hobbit in New Zealand. It was just one item on a wish list – including screwing more money from the government – that was useful for Warners to achieve, along the way. A similar item on the corporate wishlist was the ability to scrap the actors union’s ability to challenge the casting of minor roles to overseas actors if and when there were New Zealanders who could do the job. This is not only an accepted premise of immigration law worldwide as a means of job protection – it is what Hollywood studios routinely comply with in UK film productions.

If for instance, as then Economic Development Minister Gerry Brownlee suggested this morning on RNZ, the production was ever remotely at risk of being whisked off overseas to Pinewood studios in Britain…

…then Warners would have had to comply with these set-in-concrete British work rules that they allegedly could not tolerate any longer here:

To ensure that overseas actors are of a sufficient high quality and not displacing resident labour force in the United Kingdom it has been agreed with Equity that the employer must, in all cases, provide evidence of one of the following:

* The work is for continuity.
For example if the person has worked for a period of one month or more on the same piece of work overseas.
Applications submitted under the criteria for continuity must supply proof that the overseas national is currently, or has recently been working on the same piece of work overseas (i.e. contracts or press reviews or other such documents) and has done so for at least one month.
The UK Border Agency will still consult with Equity if the actor/actress has played the same part abroad in a production of the same name, as this would not be classed as continuity.
* The person has international status.
For example if they are internationally famous in their field.
An actor with international status is a well-known star who would not displace resident labour. This does not mean the same as being established overseas.

Etc etc

In reality, US film productions in Britain still do comply with those rules. Yet thanks to the Key government’s craven capitulation, Warners no longer have to meet those same conditions here.

All this however was just a sideshow. The unions had already signed a deal on October 19, 2010 (a few days before the infamous march of Richard Taylor’s flock of sheep in Wellington) that had effectively closed the door on industrial action over The Hobbit. That deal promised in good faith – which is a legal commitment, not merely a good will gesture – not to take industrial action during the course of the film, and not while the new Pink Book conditions meant to govern the management of film productions in New Zealand was being negotiated.

All parties had been informed of this successful resolution, but the unions acceded to requests to keep quiet about it. This request for compliance not only enabled the unions to continue to be scapegoated publicly, it also maintained a fictitious political climate of perilous uncertainty whereby the other goals (over $30 million more money for Warners, the changes to industrial law, the immigration visa permit guarantees) could be rationalised, gift wrapped and dropped in Warners’ lap.

It is hard to say which is more excruciating: the sense of outrage, or the sense of embarrassment that New Zealand let itself be played like chumps in this way. It is embarrassing to read about the government dispatching a fleet of official limousines to pick up the Warners executives at the airport as if they were visiting heads of state, and to hear the details about Brownlee rushing to the phone – like some starstruck groupie – to ring Peter Jackson about the gist of Cabinet discussions. You know, those private Cabinet discussions to which the media and the general public are never made privy.

It should be underlined that we know this stuff about The Hobbit only because RNZ kept on doggedly seeking the evidence via OIA requests and complaints to the Ombudsman in the face of government obstruction. The government has wanted no transparency about its behaviour during this episode and one can readily see why.

But we should all be worried – very worried – that this same government is now conducting its negotiations with Sky City behind a similar veil of secrecy. Few people would begrudge the secrecy if the public could have any confidence in the government’s competence at the art of negotiation. But all these papers reveal is its readiness to run cap in hand to the bargaining table to sign the surrender papers.


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