The information on this page may no longer reflect the most recent version of the Screen Industry Workers Bill. This is only for reference.
Use the menu below to explore different sections of the bill overview
Employees vs. Contractors ● Mandatory Terms ● Good Faith ● Process ● Grouping ● Nation-wide Negotiation ● Company-wide Negotiation ● Dispute Resolution ● Community Concerns ● Logistical Concerns
What is the
Screen Industry Workers Bill?
The bill provides clarity on whether workers are employees or contractors.
If you don't know whether you're a contractor or an employee, you should check your written employment agreement.
Under current law, the specific word used in your contract defines your working relationship.
If you don't have a written contract that specifically uses the word "employee", you are considered a contractor.
If you don't have a written employment agreement, you are considered a contractor. You should immediately request the terms of your employment in writing to protect yourself.
Read the relevant section of the bill by clicking the button below.
The bill establishes mandatory terms
for contractor agreements.
Written contracts are mandatory
Employers are required to provide an individual contract in writing for employees AND contractors.
A copy of the contract must be provided, as soon as practicable, after signing.
Better protections for contractors
Compliance with Health and Safety at Work Act 2015 and Human Rights Act 1993 is mandatory.
Employers must provide processes to address complaints of bullying, discrimination, and harassment in the workplace.
They must provide terms outlining the notice period and any payment owed by the company if they terminate the contract.
Cannot be fired in retaliation
Companies cannot terminate your contract because you exercised a right granted by your contract or by the law.
Establishes dispute resolution processes
See the dispute resolution section for more information about how this works.
The bill establishes a duty of good faith.
Neither party can do anything to mislead or deceive the other.
Those two restrictions are explicitly defined as the entirety of "good faith" in general, although there are a few additional requirements once collective bargaining has begun.
The bill establishes processes
for collective negotiation of contracts.
Contractors can collectively negotiate alongside other game developers nationwide.
Occupation-level collective agreements are collective agreements that set minimum rates of pay and other terms for an entire occupation across the whole country.
They are unique to this bill and would establish industry-wide minimum contract terms for everyone in a particular occupational group.
However, collective bargaining would still require the formation of a union or other worker representation organisation.
Read more about occupation-level bargaining here.
Contractors can collectively negotiate alongside other contractors companywide.
The bargaining can be for pay and working conditions above the nationwide minimum.
This works like traditional employee collective bargaining where a union or other worker representation organisation negotiates a minimum contract for workers at a specific company.
Collective bargaining requires the formation of a union or other worker representation organisation.
Read more about enterprise level bargaining here.
Contractors cannot engage in collective action while negotiations are taking place.
Industrial action (things like going on strike, work stoppage, slow downs, etc.) is the primary means by which unions in other industries are able to bring companies to the negotiating table.
This bill works off the assumption that a combination of the requirement to act in good faith and the ability for the Employment Relations Authority to make a final decision in all collective bargaining disputes will result in a fair bargaining process without the need for industrial action.
This system and restriction is unique to this bill and has not been tested in New Zealand.
Read the relevant section of the bill by clicking the button below.
This bill defines the occupational groups that are relevant to it.
All game developers are grouped into one occupational group titled "Game Developer".
The definition is very focused on visual and audio content creators. It clearly defines people who create "animation, audio, video, and graphic image files" as part of the game developer occupational group.
It also describes people who "manipulate" those media types which could potentially include programmers, but remains vague in its description.
A prior section of the bill excludes people who provide management and advertising services. This means that the bill does not apply to producers, marketing, or community management roles.
The section also excludes people who do work that doesn’t directly contribute to the "actual creation" of the video game. This could be used to exclude QA (Quality Assurance) and some of the above roles, if not already excluded.
MORE ABOUT
Nation-wide collective negotiations for minimum pay and contract terms
Union representation
A union or other worker representation organisation can initiate the collective bargaining process.
The union or other worker representation organisation must demonstrate it can notify all contractors falling under the negotiated agreement.
All contractors can take part in a vote at the end of the process to confirm their approval of the collective agreement.
Public submission
Before bargaining begins, the Employment Relations Authority is required to post a notification on its website for a period of time to solicit public submissions.
In theory, this is useful for notifying contractors that someone is preparing to negotiate a contract on their behalf.
In practice, the notification would be on a government website that contractors are unlikely to check with any regularity.
Minimum required terms
Nation-wide collective agreements must include:
Minimum rate of pay
Any minimum number and duration of breaks
If public holidays are recognised and whether the contractor is paid more for working on a holiday
The hours of work and whether the contractor is paid more for working overtime
Availability for work and whether the contractor is paid anything for being available, but not getting work
Details about the process for addressing complaints of bullying, discrimination, and harassment in the workplace
How termination is handled including the process, notice period, and any payout
Details of a dispute resolution process
Occupation-level contracts specifically must include a term that allows a company and a contractor to agree to lesser terms in everything except rate of pay for a specific project.
The exemption clause is only allowed if the company can demonstrate that abiding by the collective agreement would significantly or unreasonably increase the costs of or disrupt the specific project that the contract is for.
Collective agreements can last anywhere from 3 years to 6 years. The duration is determined as part of the negotiation.
Read more from the section of the bill by clicking the button below.
MORE ABOUT
Company-wide collective negotiations for minimum pay and contract terms
Negotiation process
This works like traditional employee collective bargaining where a union or other worker representation organization negotiates a minimum contract for workers at a specific company.
Collective bargaining requires the formation of a union or other worker representation organization.
Collective agreements can last anywhere from 3 years to 6 years. The duration is determined as part of the negotiation.
Consent to begin negotiations
Bargaining only begins if all the parties involved consent to the bargaining process within the stipulated time.
There are no clauses restricting a company from always refusing to begin the negotiations.
Alongside the contractor’s inability to engage in industrial action, this term makes the practicality of negotiating company-level collective agreements questionable.
The dispute resolution process may allow the worker organisation to require a good justification from the company to refuse the negotiating process.
However, it is not explicitly defined anywhere in the bill.
Minimum required terms
Company-wide agreements must include:
Minimum rate of pay
Any minimum number and duration of breaks
If public holidays are recognised and whether the contractor is paid more for working on a holiday
The hours of work and whether the contractor is paid more for working overtime
Availability for work and whether the contractor is paid anything for being available, but not getting work
Details about the process for addressing complaints of bullying, discrimination, and harassment in the workplace
How termination is handled including the process, notice period, and any payout
Details of a dispute resolution process
Read more from the section of the bill by clicking the button below.
MORE ABOUT
Dispute resolution processes
Mediation, facilitation and determination
The Employment Relations Authority will first work to mediate issues and use existing services like MBIE's mediation services to try to get both the company and the contractor to come to a mutual agreement.
If that fails, they will try to facilitate a resolution more directly.
If that fails, they will make a binding decision based on the arguments presented by both sides.
Collective negotiations and workplace relationship disputes
The primary focus of this section is collective bargaining and resolving situations where the company and the worker organisation can't reach an agreement.
The wording implies that any workplace relationship dispute (potentially even cases of non-collective agreements) that fall under this act would be relevant to the mediation and determination process.
Community concerns
Short duration contracts allow employers to avoid requirements
The bill requires specific termination clauses that identify what happens if the company terminates your agreement. This includes whether you should receive payment upon termination.
It makes it illegal to terminate a contractor in retaliation for exercising their rights in this bill.
However, it does not limit the use of short-term contracts to avoid the above terms.
While it would be illegal to terminate a contractor in retaliation, the bill doesn't prohibit companies from opting to not renew a short-term contract in retaliation for exercising rights granted in the bill.
The company thus avoids any payout obligation.
Ban on industrial action during negotiations could impact contractors power to negotiate
The proposed bill makes it illegal to engage in industrial action during collective bargaining.
It's possible that industrial action could be used to convince a company to start negotiations (prior to the beginning of negotiations), but it's not clear based on a simple reading of the bill.
Once collective bargaining starts, workers and those representing them are entirely reliant on the dispute resolution process to address non-cooperation of companies they are negotiating with.
The inability to engage in industrial action was specifically requested by stakeholders in the film and TV industry because of how their funding structure works.
Their primary argument is they are funded by international companies that claim to be happy to move production to a different country if workers engage in industrial action.
This funding structure is irrelevant to the majority of New Zealand game companies. It cannot be argued that New Zealand game companies would suffer in the same way.
Good faith clause is limited
A large portion of this bill is dependent on the idea that workers and companies will act in "good faith" towards each other in all their interactions.
The legal definition for good faith however only requires:
Not doing anything to mislead or deceive the other party.
Not doing anything that is likely to mislead or deceive the other party.
This means that a company can:
Refuse to cooperate at all in enterprise level bargaining.
Wording in Section 26 and Section 14 leaves space for a company to exert influence on the contractor by threatening to not renew contracts
Section 14 ensures that there is no undue influence to cause someone to be covered or uncovered by a collective agreement, but it doesn't specify influencing someone to advocate for changes to the collective agreement
At least some of these things are counteracted in other industries by the right to engage in industrial action to bring companies to the negotiating table, which this bill specifically removes as an option.
All game developer contractors are grouped under one occupational title
There are substantial differences in the duration and terms related to different roles in game development (ie. audio design vs. 2D character artist).
If all roles remain grouped together, any collective agreement will only be able to establish an absolute minimum set of standards. It will not be able to address any unique occupation specific concerns.
NEW SURVEY FEEDBACK
Some people raised that keeping all video game developers as a single combined group would allow for more leverage in negotiations and a unified front instead of pitting different disciplines against each other and fracturing the collective negotiation process.
On the flip side, some people raised that the nature of different disciplines required different contractual terms so it would make more sense to have contracts per-discipline.
Changing the bill is more difficult after it’s passed
The bill exclude producers, marketing, community managers, QA (Quality Assurance), and possibly programmers.
Once the bill is passed, there is a process for changing the groups or adding additional ones, but it's a completely new process and it is unclear how difficult it will be to undertake.
It is almost certainly easier to propose changes now, prior to the bill being passed.
Specific types of games are excluded from the bill
Education, training, and advertising games are excluded from the bill and any contractors that work on these projects would not have the additional rights granted by this bill.
No reason is defined for why these specific types of games and their contractors are excluded from the bill.
NEW SURVEY FEEDBACK
A suggestion was made to allow for exclusions, but based on income or company structure as that pertains more to the provisions of the bill then the type of game the company makes.
Badly negotiated agreements could last from 3 to 6 years
In the event of a badly negotiated contract, its minimum terms will be applicable for at least 3 years and up to 6 years.
Workers need to be confident the organisation representing them will do an effective job negotiating a good collective agreement. If not, the standard could become worse. Employers may reference the badly negotiated collective agreement as a mutually agreed upon standard for their contracts.
Companies can unreasonably deny unions access to the workplace
The bill allows employers to refuse access to a union representative if they would be forced to stop production or temporarily discontinue work.
The bill’s case example is a situation that allows the refusal of entry for the sake of protecting "sensitive material".
The majority of games work is under non-disclosure agreements (NDAs) and this clause seems unnecessarily broad. It could apply to any work that falls under an NDA and thus inhibit a union’s ability to access the workplace.
Companies can always refuse to begin negotiations
The wording for the sections outlining the process to initiate company-level collective negotiations, the scope of the dispute resolution process, and the prohibition on industrial action during collective bargaining make it unclear whether a company can be compelled (either by law or by social pressure) to engage in collective bargaining.
There are no clauses restricting an employer from always refusing to begin the negotiations.
If there are no legal requirements to engage in bargaining and no ability for workers to engage in industrial action to bring a company to negotiations, it seems unlikely that any company would voluntarily choose to engage in collective bargaining.
This effectively removes company-level collective bargaining from the worker's rights.
Survey Feedback Proposed Changes
Suggestions around mandatory terms
Suggested minimum guarantee of sick leave appropriate for the length of the contract.
Suggested extending the prohibition on retaliatory termination to prohibit retaliatory non-renewal of contracts for exercising rights under the law.
General Clarifications Around All Collective Bargaining
Collective bargaining sets minimum terms.
It fully allows an individual to negotiate better terms individually.
It does preclude an individual from accepting less beneficial terms.
It can specify minimum rates for various levels of experience and does not need to lock in the same minimum rate for all experience levels.
Suggestions around negotiations
Concern was voiced around how effective the dispute resolution process would be at enforcing the good faith requirements, particularly without industrial action.
It was also raised that this may be sufficiently protected already by existing law.
Suggestions around the dispute resolution process
Concern was voiced around the power imbalance between the company and the contractor.
As a point of clarification, the bill already states that companies do not directly pay for the mediation service and it is provided by the government as a third party.
Logistical Concerns
Workers must be represented by a worker organisation
Both occupation-level and company-level collective bargaining can only be initiated by or with a workers organisation.
A workers organisation is typically a union or a guild, however the law provides for any organisation that meets a broad definition to be registered as a workers organisation under the new bill.
At present, the game industry does not currently have an organisation set up to represent workers.
The NZGDA is likely to be legally eligible to register as a worker organisation, however:
The NZGDA is funded primarily by revenue from running NZGDC which is partially sponsored by game development companies
While the requirements to be registered as a worker organisation do not specifically preclude an organisation that receives funding from the companies it is negotiating against (although it may fall under the arms length clause), it will likely to put the NZGDA in a difficult position
In addition to the above, depending on the definition of arms length, the NZGDA may also need to adopt new restrictions on who is eligible for board positions to exclude those who would be involved in negotiations from the company side as the board currently includes owners and executives of New Zealand game companies.
Official comment from the NZGDA:
“The NZGDA Board has not made any decisions about whether or how they would take a role in any possible future collective bargaining - either representing contractors, employers or neither. This could be driven by the wishes of its membership and future boards once the Bill becomes law. The NZGDA plans to make a submission to Government about the Bill and since its membership includes contractors, permanent employees, students, hobbyists, indie teams and studio employers it plans to consider all viewpoints in its submission.”
The IGDA New Zealand chapter may be legally eligible to register as a worker organisation in New Zealand, however:
The IGDA International group has made it clear that the international body is not legally allowed to be a union or a guild
It is unclear from publicly available policies if this restriction extends to local chapters as well and if the requirements to be registered as a worker organisation in New Zealand would qualify as a union or a guild under the definition used by the international group.
In addition to the above, depending on the definition of arms length, the IGDA NZ chapter may also need to adopt new restrictions on who is eligible for board positions to exclude those who would be involved in negotiations from the company side.
Waiting on a request for comment from IGDA NZ.
If a worker organisation is unable to negotiate a good deal, they must continue negotiating or accept the bad deal
Acting in good faith is additionally defined as following through to a complete agreement once you've started negotiating.
This means that if the worker organisation isn't capable of negotiating a good agreement, they may have to accept a bad deal.
If they do, it makes it even more important for every contractor to take voting on collective agreements seriously so that they can vote down a bad deal.
Nation-wide vote must take place for national-level agreements to be accepted
For national-level agreements, every worker affected is entitled to vote on the agreement.
Workers must take these votes seriously as the terms agreed upon in the negotiation could set the industry standard for up to 6 years.
The collective bargaining portion of this bill only benefits workers if they are active in the process and keep up-to-date with the proposed agreement.
Have your say.
Making changes after the bill is passed will be
significantly harder than changing them now.
Survey closes May 2, 2020.