Workers Party statement on the Hobbit dispute

An actors’ union attempt to negotiate better work conditions has sparked the most heated class struggle in recent memory.

The workers’ initial claims were modest.

Robyn Malcolm standing up for workers' rights

As the latest Actors Equity newsletter puts it, the union:

… has been working to improve performers’ terms and conditions in the screen industry for some time now. We have tried a number of avenues, including: approaches to SPADA (Screen Producers’ and Development Association) to negotiate a standard industry agreement; seeking to negotiate directly on individual projects with production companies (e.g. Outrageous Fortune); and harnessing our relationships with international fellow unions to elevate conditions for all New Zealand performers (e.g. The Hobbit).

For a number of reasons some of these approaches have not delivered our goals. Our experience shows that the existing guidelines for the engagement of performers in the screen industry (“The Pink Book”) are rarely complied with in their entirety, and performers have been unable to insist on such compliance. Individual approaches to productions have also been problematic, and can only work when performers on the production have sufficient leverage. Our attempts to date have met with fierce resistance from production companies and made the legitimate desire of performers to negotiate together a high-risk strategy.

Because talk didn’t deliver any improvements for their members, the union used the only strategy remaining to it and took action.

A month ago, in collaboration with Australian entertainment unions, Equity issued a do-not-work order, refusing work on The Hobbit without a union-negotiated contract.

Backed up by a violent storm of anti union agitation from the government and the capitalist media, the film’s producers refused to negotiate, saying the actors would need to talk to the national producers’ body, SPADA. Actors Equity and SPADA met last week and withdrew the do-not-work order.

The response of the right was to put the boot in harder.

Editorial writers, cartoonists and media hacks dutifully voiced an hysterical chorus of anti union agitation. Typifying the tone was the column from broadcaster Paul Holmes :

“Man, I’m angry. Angry that a group of gullible actors have allowed themselves to be used by some bolshie, left-wing filth from Australia…..what the whole disastrous affair shows is the unbelievable ego and rank selfishness of actors. What in God’s name were they thinking?”

Holmes ended his tirade with the abject grovel:

“And if it all has simply been a brilliant game by Warner Bros to garner greater tax breaks, they have played it brilliantly.”

Beneath the rhetoric, the ruling class revealed its claws.

Economic Development Minister Gerry Brownlee suggested the Government might change New Zealand  employment law to clarify issues relating to the difference between an employee and a contractor. In other words, change the law to remove union negotiating rights.

Otago University employment law specialist Professor Paul Roth noted that such a law change specific to the film industry could set a precedent for other workers. Any time an industry looked likely to be damaged by overseas competition, similar action might be required.

In this instance, movie producer Sir Peter Jackson and money were driving any law change, not principle or justice, Roth concluded.

Amidst threats and uproar, members of Actors Equity remained committed to their union, claiming a significant membership increase during the dispute.

Equity spokesperson Robyn Malcolm told the Sunday Star-Times that she did not mind being unpopular while fighting for a good cause.

“I really believe in this stuff. I believe in workers’ rights.”

Robyn Malcolm went on: “I don’t actually need a union anymore. I can go in and negotiate a pretty good contract for myself. The reason I am doing this is I have been in this industry for 20 years and I remember what it was like to be a baby coming out of drama school – you are unbelievably powerless.

“All you want to do is please every director, producer and company you work for…the idea of making any sort of demand in a contract is completely terrifying.”

Without across-the-board industry standards, “actors are completely unprotected”.

“I could choose not to care. I could just very quietly not rock the boat. I am a working solo mother of two boys and I don’t have a job. Outrageous Fortune has finished. I am looking for work. Would I really, in the words of Cheryl West, want to root my own industry?

Jennifer Ward-Lealand, who is president of Equity, said she had thought about the possible repercussions for her career.

“I think it’s fair, what we asked for, so I’m hoping that people are rational enough to see that. I guess we’ll see what the future holds.

“I’m not saying it doesn’t require fortitude – everybody around me is aware of that – or that is hasn’t been hard on me and the family, but you have to come back to the question: is it fair to ask for a meeting? And I think it’s fair.”

Jennifer Ward-Lealand taking a principled stand

As this is being written, Warner Bros Company executives are meeting producer Sir Peter Jackson and Prime Minister John Key to discuss the future of the $670 million project.

It’s no mystery why Warner Brothers is playing at threatening to pull out of New Zealand. They want to maximise their tax rebate, which in NZ is currently 15%. In France it is 20% and in Ireland 28%. Jackson wrote in a review of the NZ Film Commission two months ago that production subsidies are crucial to films being made here.

Gordon Campbell in an article on 22 October pointed out that Warner Brothers stood to gain by tens of millions of dollars by pressuring the government to give bigger subsidies: “Theoretically, how might the difference play out? On a $US500 million production that The Hobbit is reputed to be, it means that Warners/MGM could conceivably get a rebate of “up to” $US140 million in Ireland, as opposed to a maximum here of $US75 million. And we are supposed to believe that local unions merely asking for a collective wage agreement have somehow over-ridden a potential $US65 million difference in the bids? Yeah right.”

The Hobbit dispute underlines some other grim political realities.

When it comes to industrial disputes there’s no point in workers expecting “fairness” from employers or governments. When the union withdrew its threat and CTU President Helen Kelly began a series of apologies to the bosses, there was no let up from the other side. It was irresponsible of the union leaders to give an absolute assurance that there would be no disruption to the filming of The Hobbit in New Zealand. Who knows what workers’ issues might come up in the course of the production?

The only way workers can make any progress is by standing just as firm as the bosses. This can’t be done by single unions, we have to use our numbers and unite as a class. Workers’ unity is not just a nice phrase, but a condition requiring serious political preparation.

With hindsight, it can be seen that in the Hobbit dispute, more should have been done by the unions to get the technical workers onside, before attitudes were struck.

There is an attitude problem in the New Zealand union movement. Recent years of CTU leaders’ vain strategy of “Partnership” with the government and employers have left us weak and demoralised.

Another political reminder from the Hobbit battle is the uselessness of the Labour Party to workers in struggle. After their much vaunted ‘turn to the left’ conference last week there hasn’t been a peep out of Phil Goff in support of Equity’s basic union claims. Its when times get hard that you see who your friends really are.

Finally, what drove so many people to fall in line with the Hobbit bosses’ ‘work for us at whatever conditions we offer you’ demand?

Peter Conway, CTU Secretary, says: “The commemoration of Labour Day this year comes at a difficult time for New Zealand workers. There are 256,000 jobless and over 102,000 workers needing additional work, while many others are toiling for long hours on low rates of pay just to make ends meet”.

The increasingly harsh conditions of capitalism can make people desperate. Especially when unionism doesn’t seem to offer an alternative.

There is a way forward.

We should learn from the enemy. In the Hobbit struggle, the capitalists’ heavy propaganda campaign showed their fear that strong union action can be effective. The thing is for us to catch up and get the same level of class understanding.


  1. Geoff Houtman says:

    This started when a union instigated a world-wide boycott BEFORE asking their members’ opinion.
    No conspiracy. Very simple.

  2. Don Franks says:

    Equity members made the decision. They met and voted on Wednesday, 29 September 2010
    This is the resolution agreed by the entire meeting (bar one):

    This meeting of New Zealand performers:

    1. Calls on the producers of The Hobbit to meet with representatives of the NZ Actors’ Equity to discuss the arrangements under which NZ Actors’ Equity will recommend performers work on the production The Hobbit,

    2. Calls on the producers of The Hobbit to have good faith negotiations with representatives of NZ Actors’ Equity concerning the arrangements pursuant to which NZ Actors’ Equity will recommend performers work on the production The Hobbit; and

    3. Recommends that all performers wait before accepting any engagement on the production of The Hobbit until the production has advised whether it will enter into good faith negotiations with NZ Actors’ Equity with respect to the minimum conditions of engagement under which NZ Actors’ Equity will recommend performers work on the production The Hobbit, including minimum fees, conditions of engagement, professional protections and residuals. If the productions advises it will not enter into such good faith negotiations then NZ Actors’ Equity should make a further recommendation to performers on what action should be taken at that time before performers accept engagement of the production.

    Warner Bros bosses may have widely consulted with their staff before arm twisting to get a higher tax break, but I rather doubt it.

  3. I believe in workers’ rights, too, but this particular union action stinks to high heaven.

    Jed Brophy has a clear and pointed grasp of things, I think:

    You are no doubt aware of the recent public eruptions between the
    producers of The Hobbit and the MEAA, which is attempting to insert
    themselves into discussions between New Zealand Actor’s representatives and Three Foot Seven acting on behalf of The
    In 2006 Actor’s Equity (NZ), whose membership at that time had
    dwindled to around 80 actors, decided to take up an offer by the
    Media and Entertainment Arts Alliance (MEAA) to become a branch
    of the larger and more powerful Australian trade union. The MEAA represents Australian sports people, journalists, performers and
    actors. In doing this, NZ Actor’s Equity essentially forfeited their independence to the MEAA, a trans-Tasman trade union which
    has no legal standing in NZ . (MEAA/Actor’s Equity is not registered
    as an NZ trade union, nor are they on the register of incorporated
    With the announcement of casting beginning on The Hobbit rumors
    began circulating that the MEAA had made the decision to ‘target’ The Hobbit in order to leverage more support for their union and strengthen their position within the Australasian film industry. It was speculated that_MEAA management recognized that it was in their best interests to lock down NZ actors so that they could not
    form a competing pool of talent which could make themselves
    available to Australian producers and large budget overseas
    productions. The MEAA, of course, have every right to pursue this
    strategy – it’s smart, if somewhat ruthless – but in doing so and
    in placing their own best interests first, they don’t seem to care
    that they are putting the entire NZ Film Industry at serious risk
    of collapse. They are jeopardizing the livelihood, not only of NZ
    actors, but also of crew, post production workers, and industry
    support personnel. Hundreds, if not thousands of jobs will be lost.
    For the last several months, Simon Whipp (director of NZ Equity
    and secretary of the MEAA) has openly stated that the MEAA intends to use The Hobbit to assume control of all NZ actors’ contract
    negotiations. By leveraging the support of more powerful unions
    like SAG, the MEAA has stated as its intended aim of ‘forcing the
    Producers of The Hobbit, to the bargaining table in order to enter
    into a union negotiated agreement. The problem with this course
    of action is – it is illegal.
    However, the MEAA is insisting on collectively bargaining wages
    and conditions for all NZ actors who will be engaged to work on The Hobbit, irrespective of their status as independent contractors under the law. In a nutshell, it is illegal for independent contractors to collectively wage bargain in New Zealand. Under New Zealand law (refer the Commerce Act of 1986, section 30) New Zealand actors are independent contractors and are therefore not permitted to engage in ‘price fixing’.
    Most kiwi actors, almost without exception, choose to be independent contractors because it carries enormous advantages
    the three most notable being (i) you pay less tax; (ii) you have
    the ability to claim back your Agent’s 10% fee (iii) you can charge
    your services out at a higher rate.
    The MEAA’s proposed answer to getting around this legal restriction
    is to change the tax status of Kiwi actors from independent
    contractors to ’employees’, a suggestion which is both absurd and
    untenable, as supported by legal opinions from the NZ Government’s
    own Crown Law Office. Most NZ actors are employed on films for very limited periods of time, on short term contracts. The idea of hiring actors on the basis of being ‘permanent employees’ is ridiculous
    because films don’t offer permanent work. But this is the only way
    MEAA can legally operate in New Zealand so it is what they are
    The MEAA’s legal advice is that the entire NZ cast of The Hobbit
    would have to form a legal joint venture with the film makers and
    studio in order to have their collective bargaining status
    recognized. It also offers a complex argument that all NZ_actors
    would have to be employed under the same terms and conditions
    including salary, for the MEAA negotiation to be legally admissible. How this can possibly work?
    A legal opinion from Peter Churchman, one of New Zealand’s top
    senior employment lawyer, states that the Simpson Grierson opinion
    is “artificial and unworkable.” This is one of many legal opinions, including one from the Attorney General as referenced
    above, all of which arrive at the same conclusion: the Simpson
    Grierson opinion is disingenuous and does not reflect the spirit
    of New Zealand employment law.
    One aspect of MEAA’s demands is that they are insisting on negotiating the contracts for all NZ actors, regardless of whether
    these actors are members of NZ Equity or not. To put this in context, NZ agents have over 2,000 actors on their books (this number increases to 17,000 if second rung performers are
    included) NZ Equity claims membership numbers of 598, although this
    number has never been independently substantiated.
    If it is a true number, NZ Equity represents roughly one quarter of all performers who are available to work in NZ and yet they claim to represent a majority of all NZ actors. (68% was the number cited in a recent article)
    The producers of The Hobbit are demonstrably not anti union. Peter
    Jackson is a very proud and loyal member of six Unions – the Directors Guild of America, the Producers Guild of America, the Screen Actors Guild of America and the Writers Guild of America, the New Zealand Writers Guild and the Screen Directors Guild of New Zealand and has acknowledged that these organisations do terrific work on behalf of their members.
    To call The Hobbit ‘non union’ as Simon Whipp has done, is misrepresenting the truth. Warners is a signatory company to SAG
    as well as other worldwide unions and as such their respective
    agreements are all being recognized and fulfilled by the production.
    It is true, however, that some of the actors who will work on The Hobbit will not be members of SAG, especially younger actors and many Australian and New Zealand performers. Residuals can be worth tens of thousands of dollars to an individual, if the film is
    successful however the normal situation is that if an actor is not a member of SAG, they do not share in the residual pot. To this end, Warner Brothers have agreed to create a separate pot of money for Australian and New Zealand actors working on The Hobbit. This money will be divided up amongst all non SAG actors who are cast in the film under a ‘participation rider’ which will be part of all cast deals. This was not done because of any pressure from Guilds or Unions, it was an attempt by Warners/New Line to treat actors working on The Hobbit equally and with respect.
    The NZ Equity/MEAA has instigated a worldwide boycott of The Hobbit through members affiliated to FIA (the International Federation of Actors). They are falsely claiming this has happened because The Hobbit is a non-union picture. This is patently untrue. All crew and all cast working on The Hobbit belong to Guilds and Unions. This includes NZ actors. What NZ actors are not allowed to do as independent contractors, is invoke their union to do collective bargaining on their behalf and thereby enter into wage fixing.
    The Hobbit has been branded ‘non-union’ because under NZ employment law, actors are defined as ‘independent contractors’ rather than as ‘employees’ and therefore cannot enter into collective
    bargaining. This is a function of NZ employment law, it is not a
    political position adopted by the producers. Simon Whipp has
    accused WingNut Films of being anti-union and it is on this basis
    the MEAA has invoked a worldwide ban on actors appearing in The
    Hobbit. This accusation is not only untrue, it is unfair and unjust
    and the blacklisting of the film is in fact illegal.
    Essentially The Hobbit has been blacklisted by the MEAA because
    the producers of the film have refused to break the law.
    Punishing the production for a perceived wrong that is in actual fact a function of NZ employment law, is grotesque. The MEAA is aware that it has authored this injustice and in spite of NZ Equity now acknowledging that collective bargaining for independent contractors is impossible under New Zealand law, there has been no retraction of the worldwide actor ban and no apology or explanation for the union’s behaviour. One must wonder why MEAA/NZ Equity has chosen to behave in this extraordinarily high handed way and what is the extent to which SAG and UK and Canadian Equity have had this situation explained to them?
    The MEAA has been provided with legal opinions, including one from
    the NZ Attorney General which confirms the illegality of their actions. In spite of this, the MEAA is continuing its campaign to be involved in negotiating cast deals for all NZ actors, whether or not they belong to NZ Equity. They have not explained to the producers of The Hobbit how any realistic employment arrangement could possibly work within the confines of the law. The MEAA is not a recognized trade union in New Zealand and has no right to enter into collective bargaining with independent contractors, under any circumstances.
    Nevertheless, it is clear, that if they are successful in steam rolling the law, the MEAA will attempt to redefine independent contractors as ‘emp1oyees’ (In NZ employees are collectively represented by trade unions) and if this should happen it will sound the death knell of the NZ film industry.
    If the MEAA are successful, they will forever change the independent contractor status of NZ actors and crew, and this would
    have a catastrophic impact the overall employment structure of the NZ film industry. All film and television work will quickly evaporate.
    Recently Simon Whipp denied making the threat of a boycott against
    The Hobbit, although that threat is clearly in play. Similarly, Whipp has denied branding The Hobbit ‘non-union’ , even though he has issued and authored many releases which say just the opposite. Whipp has implied that NZ actors are treated unfairly by us when
    we have always paid our cast well above SAG minimum rates and complied with SAG contract conditions. He seems to be so hell-bent on attacking the production, he has publically damned Hobbit contracts before they were even written! For example, we have ever given cast or crew notice without severance and yet Whipp implies this is our standard practice on our filmds. We have always treated our actors with fairness and respect; our Hobbit residuals are in fact better than those offered by Canada and elsewhere.
    We have done nothing to deserve the unfettered condemnation of the NZ Equity/MEAA, who in the form of Simon Whipp, have attempted to demonize us in the media.
    WingNut Films’ situation is all the more puzzling when another US funded production Spartacus; Blood and Sand, has shot unimpeded in NZ all through 2009 and has just begun shooting a new series as recently as August 2010. Unlike The Hobbit, Spartacus is non-union production and it’s cast contracts terms and conditions are inferior to The Hobbit. Spartacus can fire actors without warning, offering no additional compensation. They have the right to re-voice without actor consultation. They offer no residuals.
    The Hobbit cast contracts do not reflect any of these conditions and yet the film has been targeted by Equity and Spartacus has not.
    Why didn’t NZ Equity/MEAA attempt to collectively bargain better
    wages and conditions for the NZ actors working on Spartacus?
    Could it possibly be because the husband of NZ Equity President, Jennifer Ward Lealand – Michael Hurst – was hired to direct several episodes of the Spartacus series?
    Given that NZ Equity chose to target The Hobbit and given they chose not to target Spartacus, which is shooting for a longer period of time and which is using a far larger cast, working under an inferior
    contract) it is hard to see why The Hobbit was deemed by NZ Equity
    to be a more worthy target.
    Would it not have been proper for Jennifer Ward Lealand as President of NZ Equity, to declare to the NZ film community a professional conflict of interest?
    Has NZ Equity used its power as a union (albeit a union that is
    based in Australia) to unfairly target one production over another
    It appears to be so.
    Does Jennifer Ward Lealand, as president of NZ Equity and dedicated union leader, have a problem with her husband shooting a non-union, US television series in NZ?
    It would appear she does not. NZ Equity were more than happy to provide the NZ standard cast contracts to the producers of Spartacus, and yet these are the same cast contracts they have
    publically damned.
    The MEAA too, have been curiously silent about Spartacus.
    Perhaps they have bigger fish to fry?
    Perhaps, in the end, this is not about Actor’s Equity, nor is it about The Hobbit.
    Perhaps it is about an Australian trade union making a blatant play
    to take a controlling hand in the NZ film industry – in order to steer lucrative work back across The Tasman, where Australians would prefer it to be.

    • Philip Ferguson says:

      “Perhaps it is about an Australian trade union making a blatant play to take a controlling hand in the NZ film industry – in order to steer lucrative work back across The Tasman, where Australians would prefer it to be.”

      What a hoot. NZ’s richest and most pampered child, Peter Jackson, gets together with mega-rich corporate Warners Brothers to hold the NZ film industry to ransom, and that’s perfectly acceptable. But a NZ union having a boycott, and being supported by an Aussie union, after the mega-rich corporate has refused to enter bargaining is terrible!

      Peter Jackson and Warner Brothers even get to decide NZ’s industrial legislation.

      What a lovely little democracy.


  4. “Peter Conway, CTU Secretary, says: “The commemoration of Labour Day this year comes at a difficult time for New Zealand workers. There are 256,000 jobless and over 102,000 workers needing additional work,”

    So the CTU’s solution is to drive off a project that is worth 2500 jobs to local New Zealanders? You commies never were that smart, but that’s a new level of stupidity, even for you.

    • Philip Ferguson says:

      Adrian wrote, “So the CTU’s solution is to drive off a project that is worth 2500 jobs to local New Zealanders? You commies never were that smart, but that’s a new level of stupidity, even for you.”

      So, forget all about conditions of employment, pay, good-faith bargaining and all the rest of it, we should all just grovel and tug our forelocks in gratitude that a mega-rich company is coming here to make profits.

      This whole episode has brought out the obsequiousness of one section of the population.

      One of the things that amuses me is that right-wingers are always banging on about how kids are out of control and the problem is lack of parental responsibility. Yet when Peter Jackson reveals himself to be the biggest spoilt child in the country and throws a public hissy fit to get what he wants, the right are the first people to indulge him. Instead of sending him to his room until he can stop with the tantrum, they give in to him.

      So, please, let’s have no more right-wing hypocrisy on the issue of children doing as they please and parental responsibility.


  5. Alec Morgan says:

    Petra, you have used a lot of bytes to basically describe in detail from a nationalist point of view the appalling disunity, complete with nasty personal attacks, among workers in the entertainment business.
    You can drill through the emails, who said what when, but it won’t change the reality that a troubled company (MGM) with 50% of Hobbit rights and Warners want the cheapest deal with least restrictions upon them. The patriotic nationalism whipped up by Weta and Sir Jackson in Wellington is delivering the US capitalists a compliant workforce as well. Meanwhile the torys are scapegoating unions virtually hourly to get another whack into sections of the working class that are taking action-teachers lab workers etc.
    MEAA could vanish tommorow, but until the various guilds and AE and non union film workers get together with a common approach you will continue to be shafted in what is a low paid for many crew, precarious industry (count up the hours over a year).

  6. Ian Anderson says:

    “Meanwhile the torys are scapegoating unions virtually hourly to get another whack into sections of the working class that are taking action-teachers lab workers etc.”

    Yeah, it’s interesting how mutually beneficial this whole situation has been to Warner Brothers and the state.

    I also don’t understand what the MEAA would get out of undermining this production, given it’s unlikely to be outsourced to Australia. Even leaving out that AE has a mandate from its (NZ) members to seek negotiation.

  7. Jed Brophy’s comment is not only outdated (making reference to things which have changed or were proved incorrect), but is also based on rumour and speculation, much of which has also been since contested or disproved. “… rumors began circulating … [and] … It was speculated that …” is hardly sufficient grounds to build a case.

    And throughout their existence unions have had to both break the law and force employers to do so, because it is bosses who write the law. Unions themselves have often been illegal and striking is virtually illegal in New Zealand. Arguing on the basis of New Zealand’s anti-union laws is a road to nowhere. Virtually every progressive gain ever made in society has required the breaking of laws.

    Brophy ends with a disgusting bit of xenophobic anti-Australian nationalism, speculating that:

    “Perhaps it is about an Australian trade union making a blatant play to take a controlling hand in the NZ film industry – in order to steer lucrative work back across The Tasman, where Australians would prefer it to be.”

    What a despicable statement. We have to see past the sycophantic fawning around Jackson and co. He’s a multimillionaire businessman first and being a “very proud and loyal member of six Unions” comes a very poor last. I have no doubt that his membership of organisations like the Producers Guild of America is very useful to him, but it is hardly the same as trying to get basic conditions for extras in one of his movies.

  8. He’s also dangerously ignorant of employment law for someone who appears to think that the trump card is that it would be ‘illegal’ to meet with MEAA (which is in itself ridiculous – because if WB can legally observe SAG, and other international actors guild contracts in NZ, then it can do the same thing for NZ actors):

    The idea of hiring actors on the basis of being ‘permanent employees’ is ridiculous because films don’t offer permanent work. But this is the only way MEAA can legally operate in New Zealand so it is what they are advocating?

    Funnily enough there is a category between permanent employees and contactors – that’s a fixed-term employee.

    New Zealand employment laws offer so few protections that film work could still be temporary, and have hours dictated by the employer.

  9. Philip Ferguson says:

    According to Peter Jackson, “Turning us into another state of Australia under the sway of a destructive organisation carries the very real risk of destroying the great big heart that beats inside our films. I believe the Kiwi way of doing things should be protected and celebrated.”

    What a liar, hypocrite and manipulator. He is an advocate of turning “us” into a subordinate of mega-rich businesses, both his own and Warners Bros.

    I also seem to recall him taking Warners to court a few years for more money (millions, of course). But, apparently, him try to get millions more out of Warners by dragging them into court, is perfectly fine; it’s only when workers try to get a better deal that there’s suddenly a problem of scaring them off.

    Basically, this whole thing has been a Jackson-Warners Brothers rort. And it appears that the folks who are usually most vociferous about the poor rorting the system are the loudest in favour of the mega-rich rorting the system.

    The spectacle of a few thousand people in the street engaging in special pleading to Warner brothers, “please, please, please, come and exploit us, treat us any way you like, it’s fine because we’re obsequious little elves” is one of the most unedifying things I’ve ever seen.


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