From The Hip

Contractor? Employee? Both? Insanity.

I’m really fired up about this you have no idea. When it was announced that the government was planning to change a very specific component of employment law, the din of reactionaries could be heard far and wide: The big bad corporate was coming to New Zealand to purchase laws so they could enslave an entire industry. How dare they highlight a stupid, ambiguous idiosyncrasy of our employment law, in their attempt to spend millions employing thousands of kiwis! The ever clueless, tactless, and abrasive Helen Kelly (i’m trying extremely hard to be polite yet accurate)

“This is another attack on fairness at work. It’s another attack on working people. It can be added to the pile of things going through the Parliament,” 

”It’s unjustified. It’s opportunistic of the Government to chuck this in as a result of this dispute.

”I want to know whether this is Warners genuinely calling for this law change or … whether there are other people behind it or whether this is simply the Government over-egging the custard on this and saying ‘while we’re here, we’ll get some more law changes through’. We know they’re keen to reduce worker rights - they’ve shown that. Either way it’s unacceptable. It’s an unfair law change.”

Fuck me. This record is well and truly broken.

Unfair law change? Lets see what’s unfair. What exactly are they looking at changing? Turns out it’s actually an unusual ambiguous quirk in New Zealand employment law whereby in certain circumstances a person who has negotiated work with a company under the explicit understanding of being an independent contractor, not an employee, may actually be treated as an employee of that company under the law. 

So why is this a problem? We’ll it’s all about negotiation assumptions, clarity, and fairness. When a company employs an individual as an independent contractor, there are certain assumptions made when considering remuneration. Things such as they don’t cover the cost of annual leave, sick pay, and other employee related overheads. In essence, contractors can assume those overheads themselves, in exchange for charging higher rates. It also means that the contract outlines under what circumstances the contract is terminated, not employment law. A person entering a contract with another is obviously aware from the outset what they’re exchanging and waiving.

So what happens when the shit hits the fan, and a rogue contractor becomes miffed because a termination clause is invoked in an entirely legal, but undesirable way? Under the current law, they can, in certain circumstances, be deemed an employee of the contractor, and can claim all the benefits of employee status under the law. This after knowingly accepted from the outset that they were willing to exchange all those overheads in exchange for likely higher remuneration. That doesn’t seem very fair to me. It’s changing the rules of the game for one of the contractual parties to their detriment. Effectively what the current law means, is that in certain situations your right to work as an independent contractor under the law is stripped from you, and you will be considered an employee. 

The proposed law change basically states that a “person engaged in film production work” who negotiates work as an independent contractor, is without shadow of a doubt an independent contractor in the eyes of the law, period. Seems pretty fair to me. Actually, the only unfair part is that this law change will be limited in scope to only those involved in film production work. Shouldn’t all independent contractors have this basic clarity? I think so.

But there’s a bigger, uglier issue which has become more prominent in light of this Hobbit debacle. It’s the religious attachments of people and organisations to illogical, dangerous rhetoric. Attachment to stereotypes of a bygone era. Left vs right, worker rights vs ‘the man’, the ‘us’ vs ‘them’ mentality.

It’s destructive, counter productive, and inefficient. Drop the baggage and just give logic a fucking chance.

Layton