You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2020 >>
[2020] NZBORARp 3
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Screen Industry Workers Bill (Consistent) (Sections 14, 16, 17) [2020] NZBORARp 3 (10 February 2020)
Last Updated: 10 March 2020
10 February 2020
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Screen Industry
Workers Bill
Purpose
- We
have considered whether the Screen Industry Workers Bill (‘the
Bill’) is consistent with the rights and freedoms affirmed
in the New
Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’).
- We
have not yet received a final version of the Bill. This advice has been prepared
in relation to the latest version of the Bill
(PCO 21870/21.8). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
this advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. We have
considered the consistency
of the Bill with s 14 (freedom of expression), s 16 (freedom of peaceful
assembly) and s 17 (freedom of
association). Our analysis is set out
below.
The Bill
- The
Bill introduces a stand-alone legislative framework to govern contracting
relationships in the screen industry. It enables screen
industry workers and
engaging organisations to collectively bargain contract terms and conditions at
the occupation and enterprise
level.
- Screen
industry workers are usually engaged as independent contractors, and s 6(1)(d)
of the Employment Relations Act 2000 precludes
the court from making a
determination that a screen industry worker is an employee for the purpose of
that Act. This Bill retains
the status of screen industry workers as independent
contractors, but provides an alternate means for these workers to organise and
pursue their collective interests.
- The
Bill gives effect to the recommendations made by the Film Industry Working Group
in October 2018 which involved representatives
of companies and workers in the
film industry. In particular, the Bill:
- provides clarity
about the employment status of people doing screen production work,
- introduces a
duty of good faith on parties to a workplace, along with other mandatory
individual contract terms (e.g. the contract
must be in writing and set out a
process by which a worker may raise a complaint about bullying, discrimination,
or harassment in
the workplace),
- provides a
process by which worker and employer organisations can be registered and
recognised to represent their members in collective
negotiations,
- allows
collective bargaining to occur at the occupation and enterprise levels, and
- creates
processes for resolving disputes arising from contracting relationships or
collective bargaining, while preventing workers
from taking industrial
action.
- In
doing this, the Bill makes some minor consequential amendments to the Employment
Relations Act 2000.
Consistency of the Bill with the Bill of Rights Act
Section 14 – Freedom of Expression
- Clause
14 of the Bill of Rights Act affirms that everyone has the right to freedom of
expression, including the freedom to seek, receive,
and impart information and
opinions of any kind in any form. The right has been interpreted as including
the right not to be compelled
to say certain things or to provide certain
information.1
- There
are broadly three ways in which the Bill engages the right to freedom of
expression:
- clause
13 imposes a limited duty of good faith on parties to a workplace relationship,
in particular, requiring that parties not act
in any way that will or is likely
to mislead or deceive the other;
- several
provisions of the Bill dealing with the registration and regulation of worker
and engager organisations require these organisations
to provide a Registrar of
Screen Industry Organisations (the Registrar) with information, and for some of
that information to be
published on the internet (e.g. cls 21 – 25, 35,
37, and 43); and
- in
bargaining, the Bill requires parties to bargain in good faith—including
the provision of confidential information to the
other party—and prohibits
workers from engaging in industrial action if the action is intended to affect
the outcome of bargaining
(particularly cls 26, 28, and 30).
- A
provision which limits a protected right or freedom may be consistent with the
Bill of Rights Act if the limitation is reasonable
and justifiable in a free and
democratic society under s 5 of that Act. The s 5 inquiry may be approached as
follows:
- Does
the provision serve an objective sufficiently important to justify some
limitation of the right or freedom?
- If
so, then:
- Is
the limit rationally connected with the objective?
- Does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- Is
the limit in due proportion to the importance of the objective?
2
1 See, for
example, Slaight Communications v Davidson 59 DLR
(4th) 416; Wooley v Maynard [1977] USSC 59; 430 US 705
(1977).
2 Hansen v R [2007] NZSC 7 at [123]
- Each
of the three categories of limiting provisions are considered in
turn:
- The
purpose of the limited duty of good faith at cl 13 is to promote effective
workplace relations. Effective working relationships
require trust and
confidence between the parties in the workplace. Misleading and deceptive
actions undermine trust and confidence
and are therefore antithetical to
effective working relationships. Clause 13(2) of the Bill ensures that the duty
of good faith is
targeted narrowly to prohibiting misleading and deceptive
actions. Misleading and deceptive actions could only be of low expressive
value,
while trust and confidence is fundamental to an effective working relationship.
This intrusion on freedom of expression is
therefore in due proportion to the
objective of the limit.
- The
Bill requires worker and engager organisations to provide various forms of
information to the Registrar, and for some of this
information to be published.
The objective of this limit is to ensure that only worker and engager
organisations that are fit to
act as representative organisations are
registered, that organisations have the necessary mandate from members to
initiate bargaining
and ratify agreements, and that third party worker or
engager organisations which may have an interest in a worksite are aware of
which organisations that the Employment Relations Authority (the Authority) has
authorised to initiate bargaining. These purposes
are essential to the design of
a fair and inclusive collective bargaining regime where multiple parties might
have overlapping and
competing interests.
The information
the Bill requires be provided to the Registrar and the Authority is tightly
connected to the criteria set out in the
legislation that worker or engager
organisations must satisfy to undertake various actions. The information the
Bill requires be
provided goes no further than is necessary to satisfy those
obligations. The expressive value of the information the Bill requires
be
provided is low. It is largely administrative in nature and is not likely to be
sensitive. In contrast, the independent oversight
by the Registrar and the
Authority ensures that parties act fairly, lawfully, and transparently. This
intrusion on freedom of expression
is therefore in due proportion to the
objective of the limit.
- In
bargaining, the Bill requires potentially confidential information be provided
to the other party to the negotiation and prevents
workers and engagers from
taking industrial action. These two limitations are considered discretely
below:
- The
requirement to provide information to the other party in bargaining replicates
existing provisions in the Employment Relations
Act 2000.3
The sharing of information enables the parties to understand the
other’s position and to substantiate bargaining claims. The
Bill includes
detailed safeguards to ensure that confidential information can be protected,
and to the extent that any confidential
information is required to substantiate
a bargaining claim, ensures that that information must only be used for the
purpose of bargaining
and is otherwise kept confidential.4
The Bill explicitly does not limit or affect the Privacy Act
1993.5 The expressive value of information the Bill
requires to be shared in bargaining is of moderate expressive value. However,
the provision
of the information is essential to ensure robust bargaining
between
3 Section 34.
4 Clause 30(3)-(7).
5 Clause 30(3)(8).
parties, and the Bill effectively protects more sensitive interests. This
intrusion on freedom of expression is therefore in due proportion
to the
objective of the limit.
- The
prohibition on industrial action is a core provision to the Bill. This provision
gives effect to a key recommendation of the Film
Industry Working Group, and was
considered by the Working Group to be necessary to ensure that New Zealand
remained internationally
competitive in the film production industry. This
objective is sufficiently important to justify some limit on the right to
freedom
of expression.
The limitation is rationally connected to the
objective. If workers were able to go on strike or take other forms of
industrial action,
this could delay a project, which would affect New
Zealand’s international competitiveness. The limitation on freedom of
expression
in this case is significant. Clause 28 of the Bill bans all
industrial action undertaken for the purpose of influencing bargaining.
The
withdrawing of labour is recognised as being of high expressive
value.6 However, the current status of workers in the
screen industry (independent contractors) precludes them from collective
bargaining
and the protections that exist around exercising industrial action.
This Bill restores some collective bargaining rights to screen
industry workers,
despite their status as independent contractors, so far as is consistent with
maintaining an internationally competitive
film industry in New Zealand. This
intrusion on freedom of expression can therefore be seen as being in due
proportion to the objective
of the limit.
- We
therefore conclude that any limits to the freedom of expression imposed by the
Bill are justified under s 5 of the Bill of Rights
Act.
Sections 16 and 17 – Freedom of Association and Freedom of Peaceful
Assembly
- Section
17 of the Bill of Rights Act affirms that everyone has the right to associate
with others freely. The right to freedom of
association pertains to the right to
join an organisation to pursue a common purpose.7
However, the forming of mere contractual relationships between parties
does not engage the right.8
- Section
16 of the Bill of Rights Act provides that everyone has the right to freedom of
peaceful assembly. The choice of method, place,
and time of peaceful assembly is
integral to the free exercise of that right.9
- The
Bill generally sets out a framework by which screen workers and engagers enter
into contractual relationships. Except as outlined
below, these provisions
merely regulate minimum contract conditions and the process by which industry
participants bargain to enter
into contractual relations. As such, these actions
do not amount to the joining of an organisation to pursue a common purpose, and
do not engage the right to freedom of association.
6 ILO authority.
7 Turners & Growers Ltd v Zespri Group Ltd
(No 2) (2010) 9 HRNZ 365 (HC) at [72].
8 Above n 7 at [73].
9 Brooker v Police [2007] NZSC, 30 at [116]
per McGrath J.
- The
limitation on industrial action at clause 28 of the Bill engages the right to
freedom of association. The collective withdrawing
of labour by workers is not
only a form of expression but is also a manifestation of the freedom of
association. Depending on the
particular form that the industrial action would
have taken if allowed (e.g. a picket), clause 28 could also be regarded as
limiting
the right to freedom of assembly.
- Like
freedom of expression, limitations on the freedom of association and assembly
raised by cl 28 of the Bill may be consistent with
the Bill of Rights Act if the
limitations are reasonable and are justifiable in a free and democratic society
under s 5 of that Act.
- The
rights to freedom of association, and peaceful assembly, as particular
manifestations of expression, are intimately bound-together.
The issues that
need to be considered in determining whether cl 28 is justifiable as per s 16
and 17 of the Bill of Rights Act are
identical to those outlined with respect to
expression above in paragraph 11(c)(ii) of this advice.
- We
therefore conclude that the limits to the freedom of association and freedom of
peaceful assembly imposed by cl 28 by the Bill
are justified under s 5 of the
Bill of Rights Act.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights to freedom
of the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2020/3.html