Canadian Artists and Producers Professional Relations Tribunal
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Information Bulletin #13
Negotiations under the Status of the Artist Act
Since the first certification under the Status of the Artist Act was issued in January 1996, twenty sectors of cultural activity have been defined by the Tribunal as appropriate for collective bargaining, and artists' associations have been certified to represent these sectors. Following certification, certified artists' associations and producers are expected to enter into bargaining for the purpose of establishing scale agreements.
This issue of the Tribunal's Information Bulletin contains general information on bargaining under the Status of the Artist Act as well as an article on the experience of Canadian Actors' Equity Association and the Professional Association of Canadian Theatres with joint training in interest-based negotiation and using this process in actual negotiations.
A new way of bargaining
CAEA and PACT try interest-based negotiation
In the fall of 1998, Canadian Actors' Equity Association (CAEA or Equity) and the Professional Association of Canadian Theatres (PACT) decided to pursue training in interest-based negotiation and to try this approach in negotiating the renewal of their scale agreement. The training was provided by the Preventive Mediation Program of the department of Human Resources Development Canada (HRDC). This program aims to help parties build and maintain a constructive working relationship and to improve their joint problem-solving skills.
Lorraine Farkas from the Tribunal filed this article after meeting with representatives of HRDC, CAEA and PACT.
What is IBN?
Interest-based negotiation (IBN), also called interest-based bargaining, is being used more and more as an alternative to traditional bargaining. One of the major differences between the two kinds of bargaining lies in the way the parties bring forward their issues of concern. In IBN, parties avoid starting from firm positions, in the belief that taking positions and arguing over them tends to lead to entrenchment and rigidity. Instead, parties jointly decide on the issues that need to be addressed, then discuss their common and separate concerns on each issue. Guy Lalonde of HRDC explains that "this process encourages information-sharing in order to get to a mutual understanding of each problem".
Once all concerns have been explored, the parties jointly generate a number of options aimed at resolving the issue. Participants must be willing to discuss a variety of possible choices, on the understanding that they are simply discussing hypothetical possibilities, not making commitments. The parties then evaluate the various options, comparing each one against agreed criteria. Final commitment on each issue is postponed until the end of negotiations. Guy Lalonde emphasizes that IBN does not undermine the colIective bargaining process. "It is simply an alternative tool for parties who have decided to focus on their interests and explore opportunities for mutually beneficial results before looking at exercising their traditional rights."
What led the parties to look for an alternative way of bargaining?
Representatives from both PACT and CAEA described the hostile negotiations they went through in 1995 and 1996. As Susan Wallace of CAEA explained, "we had terrible negotiations in 1995 when we almost ended up at the Labour Relations Board. In 1996, we had bitter and difficult negotiations with lots of positional bargaining."
Not only were they difficult, but these two sets of negotiations left the parties with a scale agreement which neither liked. Andy McKim, PACT member from Tarragon Theatre, believes there was a deterioration of relations in the workplace as a result of the negotiations: "There was a fundamental difference of world views that intruded into the workplace on a daily basis. There was no longer any elasticity in our agreement; it was hard and unforgiving, Our relations looked more and more like the traditional kind of relations rather than collaborative." Both parties wanted more than ever to "throw out" the whole agreement and do a complete rewrite. After hearing about HRDC's training in interest-based negotiation, both parties readily agreed to give it a try. "Things couldn't get worse", was how Pat Bradley of PACT summed it up.
HRDC's training offers a number of possible sessions. In the case of PACT and CAEA, their executives and some staff took level one and two IBN courses. As well, one-day workshops on problem-solving were delivered in five regions to their joint-committees. Guy Lalonde also provided facilitation in the parties' first real bargaining session following the training. Facilitation is integral to the IBN process, and the preventive mediation team at HRDC finds it important to take on the facilitator's role occasionally in order to evaluate the process and adjust their training accordingly.
What did the parties learn?
Susan Wallace of Equity says she learned to not presuppose the answer. She became a better listener as well. "You learn to hold off on solutions until you have a full grasp of the issue. You talk about an issue and what the needs on both sides arc. With traditional bargaining, you get to results that don't fix the problem because you don't understand the problem." Pat Bradley of PACT agreed with this. "You learn the importance of understanding everything, even if you don't agree."
Andy McKim of PACT was quite philosophical about the similarity between the IBN process and the creative process used in the theatre, "It was analogous to being in the theatre hall and problem-solving in rehearsal. You reject the idea that there are two points of view. Around the table there were lots of points of view and you don't wear hats. (…) In rehearsing, you may redo a scene 20 to 30 times using different approaches. In the final production, you do it one way, but this one way contains the experience of having done it 30 times".
What is difficult about IBN?
Pat Bradley described IBN as hard work. "It demands participation from everyone around the table. You are responsible for presenting your point of view. You must be a good communicator. You must be persuasive."
On this same point, Susan Wallace and David Caron of Equity explained that their members need to have a lot of trust in order to participate in this process since it requires eveyone to express themselves, in contrast to traditional bargaining where team members can take a back seat and leave the talking to the chief negotiator.
The IBN process requires that the negotiating teams be stable since members must participate fully in the discussions. Also, using the IBN process takes a lot of time because of the nature of the process itself. Susan Wallace explained that members of Equity have difficulty taking several days off, due to their work schedule, but also because of lack of pay during training and negotiations.
What difference did IBN make in actual negotiations?
So far, CAEA and PACT have used IBN to renegotiate the preamble of their scale agreement, which deals with the relationship between the parties. They believe that they couldn't have successfully rewritten this part without using IBN. The IBN process provided the opportunity to explore and understand issues regarding their relationship. The parties also credit much of the success to the good facilitation provided by HRDC.
However, PACT and CAEA now have a preamble that fits the old agreement, as Andy McKim puts it, "like a corduroy sleeve on a linen jacket". The two parties have agreed to continue to use IBN and they currently seem hopeful that the whole scale agreement can be rewritten. The next step will be the development of the framework for doing the redraft. They both think that the IBN process lends itself to their milieu, since this style of bargaining is more similar to work in the rehearsal hall. Susan Wallace found that IBN "allows a smoother relationship between the negotiating committee and the membership" because they can explain to the membership why the parties agree or disagree. CAEA and PACT will probably meet again in the early summer.
For more information on IBN training, contact Guy Lalonde at HRDC, 1-800-563-5677, (819) 997-2311.
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Changes at the Tribunal
The Minister of Labour, the Honourable Claudette Bradshaw, has announced the appointment of Robert Bouchard of Lac Beauport, Quebec as part-time Vice-chairperson of the Tribunal, effective April 1, 1999. Mr. Bouchard, a lawyer and lecturer at the Université du Québec à Rimouski, has been a member of the Tribunal since April 1, 1997.
Mr. Bouchard replaces André Fortier, who retired on February 28, 1999. Mr. Fortier had served on the Tribunal since March 1, 1995 and was the Acting Chairperson from September 1995 to March 1998. Mr. Fortier will continue to be active in the community through his participation in plans for the 200th Anniversary of the founding of the City of Hull in the Year 2000.
The Minister of Labour also announced on April 15, 1999, the appointment of Moka Case from Moncton, New Brunswick, as a part-time member of the Tribunal. Ms. Case is a music industry consultant providing artist management and consultation services in Atlantic Canada. She is a member of the East Coast Music Association, the North American Folk Alliance and the New Brunswick Arts Board.
Effective April 19, 1999, Josée Dubois will become the Acting Executive Director and General Counsel of the Tribunal, replacing Elizabeth MacPherson who is leaving to take up new responsibilities as the Director General of the Federal Mediation and Conciliation Service of Human Resources Development Canada.
Mediation assistance under the Status of the Artist Act
Parties bargaining under the Status of the Artist Act who have been unable to reach agreement may request mediation assistance from the federal Minister of Labour.
Requests for mediation are made under section 45 of the Act, and should be directed to the Minister of Labour, Ottawa, K1A 0J2.
Certifications renewed
A certification issued under the Status of the Artist Act is valid for three years. It is automatically renewed for an additional three-year period, unless a competing application for certification in respect of the sector, or an application for revocation of certification, is filed within the three months before the expiry of the certification.
The certifications of the Société des auteurs, recherchistes, documentalistes et compositeurs (SARDeC) and the Union des écrivaines et écrivains québécois (UNEQ) were renewed in January and February 1999 respectively.
Three first agreements negotiated
Since bargaining began under the Status of the Artist Act, at least 14 scale agreements which were in existence when the Act came into effect have been renegotiated and three first agreements have been signed:
- ACTRA Performers Guild and Vision TV;
- Société des auteurs, recherchistes, documentalistes et compositeurs and Télé-Métropole inc.;
- Société professionnelle des auteurs et des compositeurs du Québec and Société Radio-Canada
Parties bargaining under the Status of the Artist Act are reminded that they must file a copy of new or renewal agreements with the federal Minister of Labour, Ottawa, K1A 0J2.
ln memoriam
On March 16, 1999, we lost a treasured member of the arts community, Gratien Gélinas. This actor, author, theatre company director and cofounder of the National Theatre School of Canada leaves a legacy that extends far beyond his life in the theatre. His contribution to the process, which led Canada to adopt the Status of the Artist Act, is very important to self-employed workers in the cultural sector whose right to collective bargaining is now recognized under federal jurisdiction.
Gratien Gélinas co-chaired the Task Force on the Status of the Artist with Paul Siren, and their report, released in 1986, recommended the creation of an advisory council on the status of the artist, in addition to focussing the government's attention on working conditions in the artistic professions and raising the issue of collective bargaining.
These recommendations would later lead the Canadian government to consider establishing a labour relations regime for self-employed artists and producers. The Status of the Artist Act, the result of years of work in which Gratien Gélinas was instrumental, received royal assent on June 23, 1992.
Tribunal Secretariat
Contact Persons:
Josée Dubois,
A/Executive
Director and General
Counsel
Lorraine Farkas,
Director,
Planning, Research and
Mediation
Marc Boucher,
Research and
Communications Officer
Telephone:
(613) 996-4052 or
1 800 263-ARTS (2787)
Fax:
(613) 947-4125
Postal Address:
240 Sparks Street, 8th Floor W.
Ottawa, Ontario K1A 1A1
E-mail address:
info@capprt-tcrpap.gc.ca
Status of the Artist Act Annotated
We are proud to announce the publication of the Status of the Artist Act Annotated. Prepared by the Legal and Adjudicative Services Branch of the Tribunal, the Annotated Act is published by Carswell and can be ordered from them for $65 at:
One Corporate Plaza
2075 Kennedy Road
Scarborough, Ontario
M1T 3V4
(416) 609-8000
1 800 387-5164
