Brief Submitted to the Standing Committee on Human Services of The Legislature of Saskatchewan, by John M. Moreau, Q.C., Acting Chairperson, Canadian Artists and Producers Professional Relations Tribunal

Canadian Artists and Producers
Professional Relations Tribunal
CD Howe Building
1st floor, West Tower
240 Sparks Street
Ottawa, Ontario K1A 1A1

February, 2007

The Standing Committee on Human Services of the Legislative Assembly of Saskatchewan has been asked to consider Bill 40, "An Act to amend the Status of the Artist Act," and in particular to look at the issue of collective bargaining rights for independent self-employed artists. The Canadian Artists and Producers Professional Relations Tribunal is pleased to share with the Committee its perspective on this issue, based on its experience since 1995 administering a collective bargaining regime in the arts and culture sector.

The Minister of Culture, Youth and Recreation posed specific questions to this committee when he introduced Bill 40, concerning the circumstances under which artists enter into bargaining, how artists select their representatives, how currently existing national agreements between artists and producers will be accommodated, and how disputes should be resolved.

In this brief, we are pleased to present a description of the collective bargaining system for independent self-employed artists and producers within federal jurisdiction, as it was set up under Canada's Status of the Artist Act¹ and as it has worked in practice.

The federal Status of the Artist Act was passed in 1992 and became fully effective in 1995. Part II of the Act sets out a collective bargaining regime and creates a quasi-judicial body, the Canadian Artists and Producers Professional Relations Tribunal ("the Tribunal"), to administer it.

"Artists" are defined in the Act as independent contractors, determined to be professionals according to specific criteria in the act,

"and who

1. are authors of artistic, dramatic, literary or musical works within the meaning of the Copyright Act, or directors responsible for the overall direction of audiovisual works,
2. perform, sing, recite, direct or act, in any manner, in a musical, literary or dramatic work, or in a circus, variety, mime or puppet show, or
3. contribute to the creation of any production in the performing arts, music, dance and variety entertainment, film, radio and television, video, sound-recording, dubbing or the recording of commercials, arts and crafts, or visual arts, and fall within a professional category prescribed by regulation."²

Regulations issued by the Governor in Council have specified a number of professions in the performing arts, film, radio, television and sound recording as artists for the purposes of the Act.

In determining if an artist is professional, the Tribunal takes into account

"whether the independent contractor

1. is paid for the display or presentation of that independent contractor's work before an audience, and is recognized to be an artist by other artists,
2. is in the process of becoming an artist according to the practice of the artistic community, or
3. is a member of an artists' association."³

Producers subject to the Act are broadcasters under the jurisdiction of the Canadian Radio-television and Telecommunications Commission, federal government departments, and most federal agencies and crown corporations, such as the National Film Board and national museums. As the Committee knows, the narrow scope of federal jurisdiction means that the great majority of work in the arts and culture sector is excluded from the coverage of the Act. Nonetheless, some 100 000 Canadian artists, 165 federal government institutions and 1 200 broadcasters come under the jurisdiction of the Act.

As would be expected of a system dealing with independent self-employment under contract, the Act's collective bargaining system is distinct from the typical industrial relations model found in labour codes. It does draw from that model, however, and incorporates some of its features, and many of the Act's provisions closely mirror those of the Canada Labour Code⁴ and most provincial labour legislation. As well, the Tribunal's deliberations have a direct link to the larger industrial relations model, in that the Tribunal, in deciding questions under the Act, is required to take into account the applicable principles of labour law.⁵

Like most traditional labour codes, the Act provides a set of rules for defining bargaining units and certifying bargaining agents, and tasks an adjudicative body with making those determinations. It ensures basic rights, such as the right of artists to join artists' associations, and protects artists against retaliation or discrimination in engagement on the basis of membership in an artists' association.

An important aspect of the Act is that it deems artists' associations certified under its provisions to be "combinations of employees" for the purposes of the Competition Act,⁶ thus ensuring that artists can form and join associations without concern that they will face allegations of restraint of trade.⁷ The Act also envisages the formation of producers' associations⁸ (and in fact the definition of "producer" in the Act includes a producers' association), and these benefit from a similar presumption for the purposes of the Competition Act.⁹

The Act imposes standards, typical of those found in labour codes, on both artists' associations and producers, such as the duty of the parties to bargain in good faith, and the duty of artists' associations to represent their members fairly. It provides a structure and mechanism for adjudicating disputes and awarding remedies, and it sets rules governing when and how artists' associations and producers can use pressure tactics when bargaining.

Under the Act, the Tribunal has two principal responsibilities. It defines sectors of cultural and artistic activity for collective bargaining purposes and certifies artists' associations to represent independent entrepreneurs working in these sectors. It also deals with complaints of unfair practices and other matters brought forward by artists, artists' associations and producers.

The first of these responsibilities, the definition of sectors and the certification of artists' associations, represented the bulk of the Tribunal's work for approximately the first ten years of its existence.

Under section 25 of the Act, an artists' association may, if authorized by its members, apply to the Tribunal to be certified to represent artists working in a particular sector. This is similar to a union applying to a labour board to be certified to represent employees in a workplace or organization. A significant difference, however, is that representation is not for a single workplace or organization — that is, not for a single producer — but for a sector. An artists' organization applies for certification to represent artists in a defined domain of artistic activity, in any of their engagements with all producers within the Tribunal's jurisdiction in that sector. For example, the Writers' Guild of Canada applied for certification to represent a sector composed of authors of literary or dramatic work in English written for radio, television, film, video or similar audiovisual production; and authors who adapt or translate literary or dramatic works originally written in a language other than English, as an English language script for radio, television, film, video or similar audiovisual production. Certification to represent artists working in this sector gave the Writers' Guild of Canada exclusive authority to bargain on their behalf with all producers covered by the Status of the Artist Act.¹⁰

Given that one of the questions before this Committee is how artists select their representatives, it is worth noting at this point that section 23 of the Act requires, at a minimum, that artists' associations applying for certification must have by-laws that: set membership requirements, give members the right to participate in meetings and participate in ratification votes, and provide members with a right to the financial statements of the association. Moreover, subsection 23(2) requires that an artists' association's by-laws not discriminate unfairly against an artist so as to prevent him or her from becoming a member.

Sectors are delineated not only by artistic disciplines, but also by linguistic and geographical factors. The Tribunal's decision on how to define the sector is guided by the Act, which requires that the Tribunal consider the history of professional relations among artists, artists' associations, and producers in the sector under consideration, the common interests of the artists in the various professions in the application, and any relevant geographic and linguistic criteria.¹¹

When the Tribunal receives an application for certification, it gives public notice¹² of the application in order to allow time for competing applications from other artists' associations to represent the same sector or some part of it. Artists in the sector, artists' associations, and producers have a right to intervene in certification proceedings. Other individuals and associations may intervene at the discretion of the Tribunal. The Tribunal always ensures that applications for certification are widely advertised, both in publications of general interest and in those of interest to the specific sectors affected by the application.

After defining a sector, the Tribunal must determine if the artists' association that is applying is the most representative of artists working in the sector.¹³ The Act does not specify how this is to be done, leaving the Tribunal considerable flexibility to carry out a factual inquiry into this representation issue. Often the Tribunal is able to rely on evidence such as the proportion of artists in the sector who are members of the association, the association's general ability to represent the artists in the sector (including over the entire geographic area and in all the languages of the sector) and the breadth of experience the association has had in representing artists. As would be expected on such a crucial question, artists in the sector and artists' associations have a right to intervene, and the Tribunal takes into consideration whether another association is capable of representing the sector.

The Tribunal also has the power under the Act to order a representation vote,¹⁴ which it has done when it is unclear which of two competing applicants is the most representative of the particular sector under review. The issue is more complicated than in traditional labour jurisdictions, where eligible employees in a defined workplace are much easier to identify. The Tribunal has, in its deliberations, established criteria for eligibility to vote, based on, for example, a required minimum amount of work in the sector.

If the Tribunal determines that an appropriate sector for bargaining exists and that an artists' association is most representative of artists working in that sector, it will issue an order certifying the association as the bargaining agent.¹⁵ Certification is valid for three years, and, subject to the opportunity for hearing competing certifications at renewal time, is automatically renewed for additional three-year periods.¹⁶

Once an artists' association is certified to represent artists working in a particular sector, the Act gives it the exclusive authority to bargain on behalf of those artists.¹⁷ The association may serve notice to bargain on a producer within the Act's jurisdiction, or, conversely, a producer may serve notice to bargain on the association.¹⁸ Under section 32 of the Act, parties in receipt of notices to bargain are required to meet and bargain in good faith, and make every reasonable effort to reach an agreement.

The parties bargain for a "scale agreement," a particular form of collective agreement which has widespread use in professional relations in the arts and culture sector, not just within the jurisdiction of the Tribunal. A scale agreement between an artists' association and a producer sets out the minimum terms and conditions under which a producer engages a self-employed artist in the represented sector. The scale agreement binds the parties to it and every artist in the sector engaged by the producer. The Act is explicit that scale agreements do not deprive individual artists of rights and benefits better than those in the scale agreement that they may negotiate in a contract.¹⁹

As noted above, the Act requires, as a condition of certification, that the by-laws of artists' associations provide for ratification votes for scale agreements.²⁰

Most sectors of artistic and cultural activity are now represented by artists' associations certified under the Act, and certification applications occupy much less of the Tribunal's time and attention now than in the early years of the Act's existence.

As noted above, one of the questions that the Minister asked the Committee to consider was how disputes arising under the legislation would be addressed. The federal statute provides one possible model for the Committee's consideration. This brings us to the second principal area of the Tribunal's work: complaints of unfair labour practices and other matters brought forward by artists, artists' associations, and producers, on the basis of obligations and prohibitions set out in the Act.

These obligations and prohibitions include the duty to bargain in good faith,²¹ the duty of artists' associations to represent their members fairly,²² and restrictions on when pressure tactics, including strikes and lockouts, may be used.²³

Producers are also prohibited from discriminating against an artist, in matters of engagement of services or remuneration, because of the artist's membership in an artists' association, expulsion or suspension from membership for a reason other than payment of regular dues and assessments, participation in activities permitted by the Act, or refusal to contravene a provision of the Act.²⁴ And it prohibits producers from negotiating with an artists' association for a scale agreement in respect of a sector for which it knows, or in the opinion of the Tribunal ought to know, another artists' association has been certified.²⁵

The Act places similar prohibitions on artists' associations. They are prohibited from bargaining or entering into a scale agreement for a sector that they know, or ought to know, is represented by another artists' association, and from bargaining with an individual producer that they know, or ought to know, is a member of a producers' association that has filed a membership list with the Tribunal.²⁶ They may not require a producer to terminate the contract of an artist because he or she has been expelled or suspended for membership for a reason other than payment of regular dues and assessments.²⁷ They are also prohibited from applying their standards of membership in a discriminatory fashion, from intimidating and coercing a member because he or she has exercised rights under the Act, and from expelling or suspending a member for refusal to contravene a provision of the Act.²⁸

It may be of particular interest to the Committee, given the interest of the Minister in how artists enter into bargaining, that the Act prohibits artists' associations from discriminating unfairly against an artist with respect to gaining or continuing membership in cases where the association has a scale agreement that requires membership as a condition of engagement or gives a preference to members.²⁹ (The Committee may also note that the Act's protections and its provisions for scale agreements are not limited to members of artists' associations; the Act permits a Rand-formula approach for deduction of association dues from remuneration whether or not the artist is a member.³⁰)

Finally, the Act prohibits any person from seeking "by intimidation or coercion to compel any person or association to become or refrain from becoming or to cease to be a member of an artists' association or an association of producers."³¹

Any of these prohibitions and unfair practices can be the subject of an application to the Tribunal, which conducts an inquiry into the facts brought forward by the parties, and has remedial order-making powers with respect to the alleged breaches of the Act.³²

The Committee may wish to note another aspect of dispute resolution under the Act. The Act requires that scale agreements contain provision for final settlement, by arbitration or otherwise, of differences between the parties, and it provides for appointment of arbitrators or arbitration boards by the Minister of Labour if the parties cannot agree on one. The Act provides for certain questions, such as the existence of a scale agreement, the identification of the parties to it, and its application to particular sectors or artists, to be referred to the Tribunal.³³ This is one area in which the Tribunal may see case activity in coming years.

The Tribunal puts a great deal of emphasis on alternative dispute resolution, particularly mediation, to resolve complaints that are brought forward. The Tribunal maintains a close relationship with the Federal Mediation and Conciliation Service (FMCS), which provides mediation services to actors' associations and producers negotiating for scale agreements or dealing with grievances under scale agreements. The FMCS has developed particular expertise in dealing with matters under the Status of the Artist Act.

The Tribunal has issued over 50 decisions since 1995. It has defined 26 artistic sectors for collective bargaining, and has certified artists' associations for those sectors. There have been over 87 scale agreements negotiated under the Act. Many of these reflected established collective bargaining relationships that had developed before the Act was passed, but more than 32 are new since the Act came into effect. A number of associations and producers are currently negotiating for their first scale agreements.

One of the questions posed to the Committee by the Minister concerns the relationship between existing national agreements and how the interests of artists and producers can be accommodated under new provincial legislation. The federal statute dealt with this concern through a transitional provision that allowed pre-existing agreements, on application to the Tribunal by the parties, to be treated as scale agreements under the Act, and the parties to be treated as artists' associations and producers under the Act.³⁴ The Tribunal has also dealt with several certification cases, where professionals were already represented by associations, which had reached agreement on the division of work jurisdiction. The Tribunal has attempted to respect these pre-existing agreements when certifying associations, while at the same time aiming to define the sectors as broadly as possible. For associations that did not have existing jurisdictional agreements, the Tribunal has encouraged these associations to work together to establish jurisdictional lines themselves.

As prescribed under the Act,³⁵ the Department of Canadian Heritage conducted a review of the Act in 2002. 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. As was noted above, the vast majority of artistic and cultural work takes place within the jurisdiction of the provinces, of which at present only Quebec has a similar collective bargaining regime.

The review also recommended amendments to the Act. One of these was for a provision to allow first contract arbitration, something that exists in most other labour jurisdictions. In our view, this would improve the effectiveness of the Act and would allow the Tribunal to assist some of those parties who have filed bargaining notices to reach a first collective agreement.

We have noted that the question of the need for a specialist tribunal to deal with the Saskatchewan's proposed legislation has been frequently discussed. There has been debate about this at the federal level as well. It is worth noting that in the discussions and debates that led to the federal statute, artists and artists' associations strongly supported a specialist tribunal to deal with this specialized domain of professional artistic relations. The reasons for their concern are straightforward. Scale agreements are a particular and unusual type of collective agreement, both in their structure and effects as well as in their typical terms and conditions of employment. Determining bargaining units and certifying bargaining agents requires an appreciation of factors specific to the arts and culture sector. And the nature of the arts and culture sector - what is produced and how it is compensated - is significantly different from the rest of the economy.

Many people have seen, therefore, an advantage in having specialists dealing with a specialized field. Where there has been objection to this approach, it has chiefly been that a specialist tribunal is an unjustifiable financial burden. We would point out, however, that this is not necessarily the case.

First, the work of a specialist tribunal can be done economically and simply, in part by an emphasis on the informal processing of matters brought before it. The Act specifies that the Tribunal's proceedings are to be informal and expeditious. In that regard, the Tribunal, as a matter of practice, focuses on helping parties resolve issues themselves, in order to avoid the necessity of hearings. The administrative costs of running the Tribunal are kept low through innovative service arrangements, such as using service contracts with other government departments for support needs, and sharing accommodation and administrative services with other agencies. While the administrative offices of the Tribunal are located in Ottawa, the Tribunal holds its hearings where the parties are located. Our members are part-time, and are residents of Alberta, British Columbia, and Nova Scotia.

Second, it is possible for existing resources to be mobilized and maximized. In this respect, we wish to suggest that Saskatchewan give consideration to calling upon the Tribunal's expertise, experience, and resources to address the challenge of establishing a collective bargaining regime in the arts and culture sector. The Tribunal is certainly willing to work closely with your government.

In addition, it may be possible for the Tribunal to be of assistance in collective bargaining under the proposed legislation through administrative agreement, if the Saskatchewan legislation was substantively consistent with the federal Status of the Artist Act.

John M. Moreau, Q.C.
Acting Chairperson

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¹ Status of the Artist Act, S.C. 1992, c. 33

² Status of the Artist Act, paragraph 6(2)(b)

³ Status of the Artist Act, paragraph 18(b)

⁴ Canada Labour Code R.C.S., 1985, c. L-2

⁵ Status of the Artist Act, paragraph 18(a)

⁶ Competition Act, R.S. 1985, c. C-34

⁷ Status of the Artist Act, paragraph 9(2)(a)

⁸ Status of the Artist Act, section 24

⁹ Status of the Artist Act, paragraph 9(2)(b)

¹⁰ Canadian Artists and Producers Professional Relations Tribunal Decision No. 016, June 25, 1996

¹¹ Status of the Artist Act, subsection 26(1)

¹² Status of the Artist Act, subsection 25(3)

¹³ Status of the Artist Act, subsection 27(1)

¹⁴ Status of the Artist Act, paragraph 17(h)

¹⁵ Status of the Artist Act, subsection 28(1)

¹⁶ Status of the Artist Act, subsection 28(2)

¹⁷ Status of the Artist Act, paragraph 28(5)(a)

¹⁸ Status of the Artist Act, subsection 31(1)

¹⁹ Status of the Artist Act, subsection 33(4)

²⁰ Status of the Artist Act, paragraph 23(1)(b)

²¹ Status of the Artist Act, section 32

²² Status of the Artist Act, section 35

²³ Status of the Artist Act, section 46

²⁴ Status of the Artist Act, paragraphs 50(a) through (e)

²⁵ Status of the Artist Act, paragraph 50(f)

²⁶ Status of the Artist Act, paragraphs 51(a) and (b)

²⁷ Status of the Artist Act, paragraph 51(c)

²⁸ Status of the Artist Act, paragraphs 51(d), (e), and (g)

²⁹ Status of the Artist Act, paragraph 51(f)

³⁰ Status of the Artist Act, section 44

³¹ Status of the Artist Act, section 52

³² Status of the Artist Act, sections 47, 48, 49, 53 and 54

³³ Status of the Artist Act, section 41

³⁴ Status of the Artist Act, subsection 67(1)

³⁵ Status of the Artist Act, subsection 66(1)