Speaking notes for John M. Moreau, Q.C., Chairperson of the Canadian Artists and Producers Professional Relations Tribunal to the Standing Committee on Human Services of The Legislature of Saskatchewan

26 February 2007

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Madame Chairperson, Honourable Members, thank you for inviting me. My name is John Moreau. I am the Acting Chairperson of the Canadian Artists and Producers Professional Relations Tribunal. I have been a member of the Tribunal since March, 2001. I am accompanied today by Diane Chartrand, who is the Acting Executive Director and General Counsel of the Tribunal.

I'm here today to talk to you about the importance of a statutory regime of collective bargaining for those working in the artistic community. I also want to talk about the value of a specialist tribunal for the administration of a collective bargaining system.

So the first question is, why a statutory regime?

Collective bargaining for artists is not new. Artists' associations such as ACTRA, the American Federation of Musicians, and the Writers' Guild of Canada have a long history of bargaining collectively with producers (which in your bill are referred to as engagers) for wages, benefits and working conditions.

What the legislation does is recognize the legitimacy of this kind of collective bargaining. Without statutory recognition, associations of self-employed independent artists can be in a legal grey zone. Most labour legislation covers employees, but not independent contractors. An association of independent contractors, without the status of a union, could be considered to be conspiring to control the supply of their services, contrary to the Competition Act.

Legislation like the federal Status of the Artist Act secures the right of artists to form associations and bargain collectively. It makes agreements with producers enforceable, provides orderly mechanisms for dispute resolution, and sets rules for pressure tactics in bargaining. Overall, it contributes to stable and predictable professional relations between artists and producers, and gives them an organized forum in which to address work-related issues and build effective relationships.

So why a specialist tribunal?

In addition to my appointment as part-time Chairperson of the Tribunal, I'm a labour arbitrator, and I've practiced in the labour arbitration field for about thirty years. I've seen how collective bargaining works in the arts and culture sector and in the traditional labour field. I strongly believe that a specialist tribunal should oversee and administer a collective bargaining regime for artists.

There are similarities between collective bargaining in the arts and culture field and those that a labour relations board deals with. But there are also a lot of differences, and they call for a particular kind of expertise.

For example, artists often engage in several different arts and are represented by a different association for each one. A producer in one situation can be an artist in another. That makes for different professional relations that you find in traditional labour situations.

So I'm a firm advocate of a specialist tribunal administering a statutorily protected collective bargaining system for independent self-employed artists. Now I'd like to describe how that works within federal jurisdiction.

The federal Status of the Artist Act was passed in 1992 and became fully effective in 1995. The collective bargaining system in Part II of the Act is administered by the Canadian Artists and Producers Professional Relations Tribunal - "the Tribunal," for short.

Artists covered by the Act include authors of artistic, dramatic, literary, or musical works; actors, singers, dancers, and other performers; and professionals who contribute to production in the arts, such as directors, performers, and designers.

Producers include broadcasters, federal government departments, and most federal agencies and crown corporations, such as the National Film Board and national museums.

In all, there are some 100 000 Canadian artists, 165 federal government institutions and 1 200 broadcasters under the jurisdiction of the Act.

The Act gives artists' associations the same legitimacy as trade unions enjoy. That's important, as we saw recently when ACTRA, after more than fifty years as a bargaining agent, saw its status and right to strike called into question.

Returning to the work we do as a Tribunal, the work falls into two principal areas. First, the Tribunal defines sectors of cultural activity that are suitable for collective bargaining, and certifies artists' associations to represent independent entrepreneurs working in these sectors. Second, it deals with complaints of unfair practices and other matters brought forward by artists, artists' associations and producers.

Here's how the first part works, that is, the definition of sectors and the certification of artists' associations.

An artists' association will apply to the Tribunal to be certified to represent artists working in a particular sector. This is analogous to a union applying to a labour board to be certified to represent a bargaining unit, which is typically a single workplace or organization. The difference is in the sectoral approach: an artists' organization applies for certification to represent artists, not in a particular contract with a particular producer, but in any of their contracts with all producers in that sector.

Say, for example, an association applies to the Tribunal for certification to represent authors of literary or dramatic work, in English, for radio, television, or film.

The Tribunal will first determine whether this is a sector suitable for bargaining. The Act sets out criteria for that. These include the common interests of the artists in the sector; the history of relations among them; and any geographic or linguistic considerations that the Tribunal considers relevant.

If the Tribunal finds that the sector is suitable for bargaining, it will determine if the association that's applying is the most representative of artists working in the sector. In a traditional labour relations situation, that's usually determined by a representation vote. Our Act doesn't specify how it is to be done, and in practice it varies, depending on the specifics of the sector. There can be a representation vote, if it's needed.

Now, if after review, the Tribunal determines that an appropriate sector for bargaining exists and that an artists' association is most representative of artists in that sector, it will issue an order certifying the association as the bargaining agent.

Once an association is certified to represent artists working in a particular sector, the Act gives it the exclusive authority to bargain on their behalf.

Bargaining is for a particular form of collective agreement, a scale agreement. This sets out the minimum terms and conditions under which a producer may engage a self-employed artist in the sector. Nothing in the Act prevents individual artists from negotiating terms and conditions that are better than those in the scale agreement.

The Act also requires, as a condition of certification, that the by-laws of artists' associations provide for ratification votes for scale agreements.

How has the system worked?

Since 1995, the Tribunal has issued over 50 decisions. It has defined 26 artistic sectors for collective bargaining, and has certified artists' associations for those sectors. There are now over 87 scale agreements negotiated under the Act; over 32 of those are new since the Act came into effect. As well, associations and producers are currently negotiating for scale agreements that didn't exist before.

As prescribed under the Act, the Department of Canadian Heritage reviewed the Act in 2003. The review confirmed the value and ongoing relevance of the Act and its collective bargaining regime. It pointed out, however, that the Act's ability to improve the circumstances of self-employed artists is limited by its restriction to federal producers. The vast majority of artistic and cultural work takes place in provincial jurisdiction. As you are aware, Quebec is the only province where a similar regime exists.

As I said at the outset, I firmly believe that a specialist tribunal should administer the collective bargaining regime for artists and producers. This doesn't have to be financially burdensome. The Tribunal has shown that it can be done economically and simply. We're a small organization, and we get the job done with limited resources. One way is to process matters informally. Our proceedings are generally informal and expeditious, and we emphasize helping parties resolve issues themselves, to avoid the necessity of hearings.

My wish to you is to consider the advantages of calling on the Tribunal to assist Saskatchewan in the implementation and administration of this legislation. If the Saskatchewan legislation is substantively consistent with the federal Status of the Artist Act, it may be possible, through administrative agreement, for the Tribunal to provide services under the legislation. This would be an economical way to address the need for a specialist board, and would allow Saskatchewan to take advantage of the resources and expertise of our Tribunal.

The goal of the federal Status of the Artist Act is to promote a lively and healthy artistic and cultural sector in Canada. Collective bargaining is an effective way to support arts and culture. Similar legislation in provincial jurisdictions, where the bulk of artistic and cultural work takes place, will contribute to the goals we share. We're proud to be able to help in whatever way we can.

Thank you. I would be pleased to answer any questions you may have.