Whether the resolution of The Hobbit fracas is good or bad, the way it got resolved looks pretty dodgy to me.

At the time The Hobbit saga was threatening the-end-of-the-world-as-we-know-it, I wrote this post expressing some bemusement about its resolution. Specifically,

"So here's what I don't get. How does that law change, purportedly meant to put Warner Brothers minds at ease about our industrial relations landscape, have anything at all to do with the actor's actions that allegedly kicked all of this off? Because I can't for the life of me see any linkage whatsoever.

In which case, what just happened here?"

Well, the Herald has done what the MSM does at its best - spending the time and resources to keep following a story even after it is "over" - and received these documents under the Official Information Act. And they make it look very much like what happened was that the public got duped by a combination of Hollywood hardball, a PR blitz, and a Government not unhappy to poke a stick in the eye of the union movement.

Remember the purported reason behind The Hobbit crisis. (The Herald's "official history" ... before the most recent documents, of course ... is here.)  The actors' union "blacklisting" of the movie until its demands were addressed meant that the studio, Warner Brothers, were set to yank it from our shores and relocate it somewhere that such threats were not an issue. Cue fire-and-brimstone from the movie's director, Peter Jackson, and the somewhat odd spectacle of workers marching in the streets against the unions purporting to represent them. Then the Government stepped in to meet the executives of Warner Brothers, engages in a bit of hard-ball, toe-to-toe negotiation, and emerges with a deal to save the day.

Of course, the fact that this deal didn't say anything at all about the original "employment dispute" or "blacklist" or call it what you like was ... interesting. Rather, it threw a bunch more cash Warner Brothers way and promised to change the law to "clarify" the status of independent contractors working in the movie business. So, why the disjunct?

Well, according to emails obtained by the Herald, it's because by the time the Warner Brothers' executives hit New Zealand,  it already was accepted that the actors' union had caved and would not be taking any action against The Hobbit. According to Peter Jackson: "There is no connection between the blacklist (and it's eventual retraction) and the choice of production base for The Hobbit."

So what exactly was Warner Brothers problem at the time they hit New Zealand (apart from wanting more money from us, of course)? Peter Jackson continues: " "What Warners requires for The Hobbit is the certainty of a stable employment environment ... ."

You could read that as a demand, albeit filtered through an intermediatry, that New Zealand change some aspects of its employment law in order to meet Warner's desires. And yet, in answer to a question from Keith Locke, Gerry Brownlee informed the House that: "Warner Bros did not put any requirements on us to do anything. The New Zealand Government has recognised that there were employment issues that needed to be sorted out, and we are going to move to clarify those."

So - just what happened here? Well, assuming that Gerry Brownlee didn't outright mislead the House, here's my reading.

The actors' union tries to use a high-profile movie to flex some muscle and prove its mettle. They call in international backing (the "blacklist").

This gets up Peter Jackson's nose - he does, after all, seem to treat those involved in his movies better-than-average - as well as gets the attention of Warner Brothers. They spot an opening and begin to make noises about having to shift production.

The country panics at the thought and the actors' union becomes the bad guys. They withdraw the threat of a blacklist and try to retreat from the field, tails between their legs.

However, Warner Brothers are riding into town to try and squeeze a bit more cash out of the country on the back of this crisis. Meeting a straight "give us more cash or we'll leave" demand would be difficult for the Government, so the narrative has to remain "there's an employment issue behind all this." Thus, the "clarification" of independent contractors vs employees is thrown in as cover.

This law then gets rushed through the House under urgency, conveniently ending the saga and letting New Zealand reap the rewards of our talented film-makers.

And maybe we will. Maybe the extra $30-odd million is worth every penny. Maybe the existing law on the independent contractor/employee distinction really was unworkable in the film industry context. (But, then ... how on earth did Avatar ever get made?) So maybe the deal is in the best interests of New Zealand.

But ... ever get the feeling you've been cheated?

Comments (22)

by The Falcon on December 21, 2010
The Falcon

The $30m is debatable. But I don't feel at all cheated by the employment law change. In fact it would be wonderful if the government completely overhauled employment law, to allow contracts to actually mean what they say. It's ridiculous that people can explicitly, consensually agree to being a contractor, then later argue they are not a contractor at law. A bit more certainty in employment contracts would lead to more jobs and less unemployment.

So this was a win-win - Warner Bros gets more certainty, NZ gets some good legislative change.

by Tim Watkin on December 21, 2010
Tim Watkin

The law change? We simply can't know for some years until we see how it plays out. What we know now is that the previous law hadn't been challenged or caused upset for the – I can't remember precisely, six or seven years? – since the court ruling.

So I've never been clear exactly what clarity the industry got, that they didn't already have. It may end up better, may not.

Andrew, I think you've missed a couple of stages in there, and they're what leave me most uncomfortable about this. (I think we collectively got close to a decent order of events in this thread).

First, Sir Peter issued several press statements that were crucial and gave a couple of rare TV interviews, which now seem at odds with the revealed emails.

Second, we knew already from the CTU's emails that the unions had caved at least ten days before the Warner Bros. management arrived. After that back down, Sir Peter and the government were still talking about the risk of the film going offshore, blaming the actors and insisting this never had anything to do with government subsidies.

I stand to be corrected, and I'd love to be wrong on this, but it seems like the signs point increasingly to this being exactly about the subsidies.

Sir Peter has paid well, is a member of various unions, did seem genuine in his anger (integrity or pique?), and this door would never have been opened if the unions hadn't over-played their hand... BUT, after all is said and done, Warner Bros and Sir Peter got millions more out of the government.

So the dispiriting questions are – was this really always just about money, and if we were cheated, was it by one of our own, Sir Peter?

by Graeme Edgeler on December 21, 2010
Graeme Edgeler
Surely the major thing to take from this is that the National Government takes its obligations under the Official Information Act seriously. :-)
by DeepRed on December 22, 2010

If only they had the same transparency with Paul Henry's supposed golden parachute, and the connection between the Holiday Highway and the trucking lobby.

by Andin on December 22, 2010

Not many "noble lies" in that lot. All it seems has happened is everyone was so busy trying to put a positive spin on events from their perspective, they have forgotten basic human concerns. That for a working society that functions without constant interference, its a good idea to establish some basic rules, such as, oohhh I dont know... If we are to trust each other its a good idea not to lie too much.

And Peter Jackson is no Voltaire, even if he is Sir.

Voltaire: A Life - CSMonitor.com

by Ewan Morris on December 22, 2010
Ewan Morris

Andrew, it seems to me that the version of events you've outlined (and that Tim has added to) has been pretty clear all along, although it's good to get some further evidence of the Great Hobbit Swindle. (Incidentally, in terms of giving credit where it's due - I'm pretty sure it was Radio NZ, not the NZ Herald, who made the OIA requests and broke this story.) Meanwhile, I can't help but laugh at Peter Dunne declaring that he is shocked - shocked! - to learn that he was played by Warners...

by mickysavage on December 22, 2010

The funny thing is that the law change may, and this needs to be read very slowly, ... not ... have ... changed ... a ... thing.

The amendment inserts a provision into section 6(1) stating that the definition of an employee excludes in relation to a film production persons engaged in film production work as an actor, voice-over actor, stand in, body double, stunt performer, extra, singer, musician, dancer or entertainer, or any person engaged in film production work in any other capacity.
There is however a exception that potentially creates a rather big hole as identified by Charles Chauvel. He was incidentally one of the counsel involved in the Bryson case.
Clause 4(2) of the bill says that the deeming provision (that film workers are not employees) does not apply “if the person is a party to, or covered by an employment agreement that provides that person is an employee”.  An employment agreement includes a contract of service which can be written, verbal or both.  So you still get to apply the Bryson test and if the result is that the person is an employee the amendment does not apply.

If this argument holds the bill is toothless and does no more than reflect current law.  The problem with rushing law changes through is that mistakes can be made.

If so then this manufactured crisis has resulted in no more than a payment by the Government to Warners of $30 million or so.

Gives a new meaning to the phrase "Ourtageous Fortune" ...

by Alec Morgan on December 22, 2010
Alec Morgan

Mickey Sav raises something I had long thought about, workers can organise to the extent that they can, regardless of the law if they are able to organise support. Mid film is a nice pressure point too.

Hopefully some of the NZ guild members are reflecting and while apologetic letters to Robyn, Jennifer and Helen are unlikely they might usefully be getting their heads around what unionism is actually about. Organising, empathy and solidarity.

One union to rule them all is really the requirement for the NZ entertainment industry albeit with sectors-writers, techs, actors, even cough, producers etc. Other unions manage to have wide occupational spreads and do a good job. If the ‘company town’ mentality at Weta and craft divisions were relegated in importance, more progress could be made by workers in the film industry for better pay and conditions.

by Mark Wilson on December 22, 2010
Mark Wilson

"Government not unhappy to poke a stick in the eye of the union movement."

God's work without a doubt. And it was delicious to see our overpaid and massively over-subsidised ($48 million wasted on Outrageous Fortune alone!!!!!) actors prove their naivety and stupidity.

A glorious result!  

by Andrew Geddis on December 22, 2010
Andrew Geddis


By what metric was money spent on Outrageous Fortune "wasted"? I really enjoyed it ...

Also, if you think the actors on that show got the bulk of the NZ on Air funding, then I've a large clock tower in London you might wish to purchase.

by Claire Browning on December 22, 2010
Claire Browning

Me too, and I only watched the last series, that I understand didn't quite cut it. How about that Pascalle + Judd storyline (+ acting), eh?

I am such a girl ...

[PS. Perhaps not quite sure, on reflection, if this comment argues for my case or Mark's ...]

by Andrew Geddis on December 22, 2010
Andrew Geddis

"How about that Pascalle + Judd storyline (+ acting), eh?

I am such a girl ..."

And I'm such a curmudgeon - to me it just didn't ring true that Judd would go from Sheryl (strong/stroppy/smart/etc, etc) to Pascalle (nice/caring/but ultimately a bit of a ditz). At least, didn't make sense in the "I'm completely in love with you, let's mess up our worlds to be together" manner it played out in season 6.

Maybe Mark is right - they cheated me! Gimme my money back!!

by Claire Browning on December 22, 2010
Claire Browning

It's called 'suspension of disbelief'.


[PS. Also, boys.]

by Alec Morgan on December 22, 2010
Alec Morgan

Well almost anythings better than discussing Mark’s world, so my feeling on Judd and Pascalle is that while it was psychologically dodgy in some ways it was believable. People in the same orbit absorb and notice things, slowburners, it only takes a glance sometimes and it is all on. Judd assumed a patriarchal role but was not off limits to Pascalle.

She wanted out and he’d possibly had enough too of all the ‘bacon squadron’  bs. Whatever! evocative final shot with Sheryl’s glowing ciggy.

by Mark Wilson on December 22, 2010
Mark Wilson

By what metric was money spent on Outrageous Fortune "wasted"?

The greatest taste is no taste and $6 mill a series is $5,999,999 too much.

by Matthew Percival on December 22, 2010
Matthew Percival

For what it's worth I found the whole Judd/Pascalle angle rather unbelievable. Maybe a teaser or two in previous episodes could have made it more believable.

I'm interested by the comment made by Alec "it only takes a glance sometimes and it's all on" Is this from previous experience or are you quoting in the context of a weekly soap opera?


by Andrew Geddis on December 22, 2010
Andrew Geddis

Gosh, Mark ... I'd have thought a hard headed inhabitant of the real world who creates so much wealth might have a slightly better grasp of basic maths. What's $6 million a series times six series made? Certainly not $48 million, unless you work for Enron.

Here's a wee challenge for you. Try making a comment that does not include one objectively verifiable error of fact. Go on. Just one.

by Mark Wilson on December 22, 2010
Mark Wilson

The left don't have what it takes.

[Ed: Ah! So you went for the factually empty, hence worthless, option. We on what you fatuously insist on calling "the left" do have, however, the power of control over this site. So, you can have a wee break from this comment thread whilst you come up with something useful to say. Other Pundit folk may or may not welcome you on theirs ... their call.]

by Claire Browning on December 22, 2010
Claire Browning
I knew it! I knew it! I saw Andrew's comment earlier and thought: but Mark only has two comment settings, ad hominem and wrong, so that's just asking for trouble ...
by John Thomson on December 23, 2010
John Thomson

Andrew - I'd be interested in your take on Jackson's comments reported on Stuff this morning 23/12 - it seems he rather wants to take the Humpty Dumpty approach - when I use a word it means exactly what I want it to mean?

by Alec Morgan on December 23, 2010
Alec Morgan

@Matthew Percival: I will duck your enquiry, and point out that there were glances galore in season six between bacon boy and Pascalle West.

Back to thread, it seems Lord Jackson has gone all confessional for some reason with his comments about MEAA and the Hobbit Enabling Act over the last two days. I know a few long time film industry workers, and am looking forward to their opinions on the OIA revelations after almost falling out with a couple of them after that dreadful Labour weekend business.

by donna on December 24, 2010

Just a ccouple of things:

Surely the major thing to take from this is that the National Government takes its obligations under the Official Information Act seriously...

In my experience, no. Maybe i need to be as scary as Radio NZ.

And sorry I'm a bit late with this - thanks to Andrew and Claire for your columns this year. My biggest concern is that you'll be sucked onto a government task force to shut you up. Here's hoping not.

Merry Xmas to all - even Mark (maybe especially Mark).

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