Frequently Asked Questions
Feel free to post questions in the Slack channel so we can chat about them and maybe they will end up here!
This information is a best effort to help people better understand their contracts and the bill. It is not legal advice, has not been reviewed by a lawyer, and should be treated as such. Follow the links in the answers to some of the supporting information (usually from sites like MBIE) to get more detailed answers and always talk to a lawyer if you need specific advice.
Am I a contractor?
How do I know if I’m a contractor?
The only way to know for sure in the video game industry is to look in your contract or employment agreement for the word “employee”. If the contract uses the term “employee” you’re an employee, if it does not (or you don’t have an employment contract), you are a contractor. Because the existing law precludes people from contesting their employment status and relies solely on that word, many other aspects of your work may look like an employee (your employer controlling where, when, and how you work, paying into PAYE on your behalf, etc), but you could still be considered a contractor.
I’m in a “trial period” that is longer than 90 days. Am I a contractor?
First we need to make a distinction between a trial period and a probationary period. A trial period means your employer can terminate your employment for any reason within the trial period and, outside of specific cases like discrimination, harassment, and bullying, you are unable to raise a personal grievance for the dismissal. In a probationary period, you can be let go at the end of the period, but only if your employer meets conditions like: outlining how your job performance is lacking, giving you this information prior to your dismissal, giving you support to improve, and you have not improved. Probationary periods are not restricted to 90 days or smaller companies, so you should check your contract to ensure what applies to you specifically.
Second, some companies in the video game industry first engage workers as a contractor and use that contract as an effective trial period before potentially hiring them on as an employee (usually these have a fixed duration like 1 year). In this situation, you may be a contractor, but you need to check for the word “employee” in your contract to confirm that you were not on a fixed-term employment agreement.
A trial period for employees can only last for 90 days and it’s only available to companies who have less than 20 employees. If you are in an actual trial period (not a probationary period) for longer than 90 days or at a company with more than 19 employees, you are hopefully engaged as a contractor and not an employee. The only way to know for sure is to check for the word “employee” in your contract, but if you do find that you’re an employee and on an actual trial period for longer than 90 days, you may want to seek out professional legal advice about your specific situation.
I’m in a “trial period” in a company with 19 or more employees. Am I a contractor?
See the above question. The same rules apply.
If I have a fixed term agreement/contract, does that make me a contractor?
Not necessarily, it is possible to be an employee with a fixed term of employment, however there are restrictions on when a company is allowed to use fixed term employees. Fixed term employment requires a good reason that you are employed for a limited period and you must be told what the reason is. As a contractor, those requirements would no longer apply, so in the screen industry an employer may use a contract for fixed term work to avoid needing to provide a genuine reason for the fixed term engagement. As with all things in this section, the only way to know for sure though is to check for the word “employee” in your contract.
Worker Organisation
Will I have to join a union/guild/worker organisation if the bill passes?
No. The bill maintains your freedom of association, so you will not be required to join a worker organisation.
Existing Contracts
If the bill passes will my contract change?
Certain contract terms will become mandatory, so if your contract doesn’t have them they will need to be added in the first year after the bill is passed. You will automatically be able to engage in collective bargaining (assuming the necessary groups are formed and conditions are met) and you can use the dispute resolution process as soon as the bill is passed, even if your contract has not been updated yet.
Your contract may also change if either occupation-level or enterprise-level collective contracts are negotiated that apply to your role and company. Those contracts will always define minimums and you are always allowed to negotiate better terms than what’s in the collective contracts. See the questions below for more details.
Will this bill cause me to lose my contract or be forced to work as an employee instead?
While the bill would not directly cause either of those things to happen, it is possible that some employers may chose to switch some roles to employment agreements instead of contracts. At present, most employers have expressed support for the bill, so it seems unlikely that they find any of the terms so burdensome that they would stop using contractors, but obviously how companies employ people are individual decisions that may change for many reasons.
Can I agree to not change my contract if the bill is passed?
No. The new mandatory terms would be required by the bill and you would not be able to opt out of them. That being said, nothing in the mandatory terms is particularly demanding on the employer, so it’s unclear what you would gain from not incorporating the mandatory terms.
Occupation-Level Collective Contracts
What is an occupation-level collective contract?
Occupation-level collective contracts set minimum terms for all contracts in a given occupational group. This is a new concept that has not been implemented in New Zealand before, although it does exist in some other countries. In some industries, the majority of workplaces are so small that it is unlikely a union would individually attempt to bargain for collective contracts with each workplace because the effort required to go through bargaining isn’t sustainable for the number of covered workers. Occupation-level collective bargaining allows grouping all of those smaller workplaces together into one larger group based on the type of work in an attempt to provide more workers access to the benefits of collective bargaining.
Will I have to join a worker organisation to be covered by the occupation-level collective contract?
No. Occupation-level collective contracts apply to everyone in the occupational group regardless of their membership status in a worker organisation.
If an occupation-level collective contract is ratified, will my individual contract change?
Occupation-level collective contracts go into effect 6-12 months after they are concluded and apply to anyone covered by the coverage clause in the contract. Once the contract goes into effect, if you are covered by the collective contract, your individual contract will automatically be deemed to have terms that are at least as good as the collective contract (even if your individual contract has not been updated to reflect those better terms). If your contract is already at or better than the terms in the collective contract then it won’t be affected by it.
If an occupation-level collective contract is ratified, can I choose to accept a contract with worse terms?
No. All individual contracts must have terms at least as good as an applicable occupation-level collective contract. You cannot voluntarily choose to go below those minimums and an employer is not allowed to engage anyone under lesser terms. There are some limited exceptions to this, but they require specific reasons and generally agreement from the groups that negotiated the collective contract.
My contract terms are really good, will I be stuck with worse terms because of an occupation-level collective contract?
No. If you negotiated better terms than the collective contract, those still apply. Collective contracts define minimum terms, so you cannot have terms that are worse than a collective contract, but you are free to have any terms that are better than the collective contract.
I’m a senior/lead/veteran in my field, will my pay go down because the occupation-level collective contract sets minimums for a whole occupation?
No. Collective contracts may specify minimum pay for different levels of experience, but regardless of whether they do or not, collective contracts only specify minimum terms. If you negotiated something higher because of your experience level, a collective contract would not override that negotiated rate.
Will I have to join a worker organisation to vote on the occupation-level collective contract?
No. Worker organisations are required to provide a means for anyone covered by the collective contract to vote for or against ratification regardless of their membership status in a worker organisation. That being said, votes on what terms the organisation negotiates for may not be open to outside workers and there is no requirement for the organisation to notify all workers individually about a vote, so you may need to keep yourself informed about when negotiations are happening and when a ratification vote is being held.
Enterprise-Level Collective Contracts
What is an enterprise-level collective contract?
Enterprise-level collective contracts set minimum contract terms for a workplace or a set of workplaces. This is what people would usually think of when they think of collective bargaining and it exists for most employees in New Zealand. These contracts are negotiated separately per-workplace or potentially as a group of workplaces, but they generally won’t affect every company in the country through a single negotiation like occupation-level contracts.
Who is covered by an enterprise-level collective contract if one is ratified?
Enterprise-level collective contracts must define who they affect and it varies by the contract. If you are a member of the worker organisation that negotiated the collective contract, work for the company that was engaged in the negotiation, and do the work specified in the contract, you are almost certainly covered by the collective contract. If you are not a member of the worker organisation, but work for the company that was engaged in the negotiation, you may be allowed to opt-in to the contract by paying a fee that is no more than the membership fee for union members.
If an enterprise-level collective contract is ratified, will my contract change?
Enterprise-level collective contracts go into effect no later than 6 months after they are concluded and who they affect varies by the contract. If you are covered under the collective contract (see the question above), when the collective contract goes into effect your individual contract will automatically be deemed to include terms at least as good as the collective contract (even if your individual contract has not been updated to reflect those better terms).
If an enterprise-level collective contract is ratified, can I choose to accept a contract with worse terms?
Not if you are covered by the collective contract. All individual contracts must have terms at least as good as an applicable enterprise-level collective contract. You cannot voluntarily choose to go below those minimums and an employer is not allowed to engage anyone who is covered by a contract with lesser terms. You would have the option to vary your contract if you chose to no longer be a member of the worker organisation.
My contract terms are really good, will I be stuck with worse terms because of an enterprise-level collective contract?
No. If you negotiated better terms than the collective contract, those still apply. Collective contracts define minimum terms, so you cannot have terms that are worse than a collective contract, but you are free to have any terms that are better than the collective contract.
I’m a senior/lead/veteran in my field, will my pay go down because the enterprise-level collective contract sets minimums for the whole company?
No. Collective contracts may specify minimum pay for different levels of experience, but regardless of whether they do or not, collective contracts only specify minimum terms. If you negotiated something higher because of your experience level, a collective contract would not override that negotiated rate.
Changing the Bill
Can we still change the bill?
It’s definitely harder to change things at this stage, but we can still provide feedback. In particular, there are ways of modifying the occupational group descriptions more easily, even after the bill has been passed. That being said, dramatic changes to the structure of the bill or the protections included seems unlikely.
If I want something in the bill to change, how can I change it?
The best way to get started is to talk to other contractors and build a consensus. Being able to demonstrate that lots of contractors want something to change will make it much easier for everyone involved in the legislative process to justify making the change. Reach out to us on Slack and through the opportunities in the Get Involved section or you can reach out to MBIE directly to provide feedback.
Can we just remove games from the bill?
While we can provide feedback that video game contractors do not want to be included in the bill, it’s unclear if that would be possible at this stage and it’s also unclear if that is the consensus view among video game contractors. If you’re a contractor or know someone who is a contractor in games, please get in touch! Join us on the Slack channel and at our events to share your thoughts and let us know what sort of contract you’re on, whether you’re generally happy with the arrangement, and whether you support the bill. We want to hear from as many people as possible to get the best possible picture of how contracts are being used throughout the industry.
If we removed games from the bill would that just solve everything?
While it’s a bit difficult to speculate about the outcomes of removing games from the bill, a potential outcome could be:
All contractors in the games industry would be able to contest their employment status again.
This process is an individual process, so it would likely take some time and would require people to personally challenge their employment status.
People who didn’t contest their status and those deemed legitimately contractors would not:
Be able to use the new dispute resolution process
Have the protections of the minimum terms or written contract requirements outlined in the bill.
Anyone who is on a long-term contract that is effectively an employment arrangement may need to change the nature of their work arrangement or their employer may determine it’s safer for the company to switch those contractors over to an employment agreement.
Some people have expressed that they are intentionally engaged as contractors in these sorts of long-term contracts and that they had the option to become employees, but preferred the terms of the contractor role. Removing games from the bill would likely affect these contractors.
In short, removing games from the bill could potentially be beneficial in some regards, but potentially detrimental in others. As with all things, both staying in the bill and being removed from it will benefit from everyone being engaged in the process and actively working towards better conditions, terms, and equity.