NS labour board redefines what constitutes an employee and a bargaining unit
On March 5, 2011, the Nova Scotia Labour Board issued an interim order that could set a precedent across Canada, not just in Nova Scotia. The International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories, and Canada, Local 849 applied to certify contract workers employed on an as-required basis by Egg Films Inc.
The interim order seeks to establish how the Trade Union Act should apply in the new economy. In the past, individual contractors were automatically excluded from employee-employer relationships. Companies started hiring contract people who could have several part-time or short-term jobs with various companies in the film industry. They could work for Egg Films a couple of days per month and the rest of the time for other employers. This was the first time that employees voted on a day when they were not employed by the employer in question. The labour board decided that the new economy could mirror the construction industry. It applied the following test:
- Is the worker being controlled by an employer or a client?
- Is the worker financially dependent upon or independent from the industry?
The board decided that the individuals concerned could be defined by their skills and techniques in the same way that individuals in the construction industry are. It found there are skills and specific techniques in the film industry, and even if the workers only worked for Egg Films two days a month, they could form a bargaining unit.
Will the industry become unionized?
The union now has to think about the cost of representing employees who only contribute a very small amount of union dues compared to traditional workers. People who only work a couple of days a month have to consider the extra cost of union dues and whether or not the change could limit their job opportunities. Companies in the industry have to think about people who only work a few days per month for the company having a say about their business. Industry representatives believe that, for the union, this initiative is the “thin edge of the wedge”: if the union can achieve a toe hold in Eastern Canada, this could translate into gains in other parts of Canada.
Because of the high stakes involved, there could be a request for a judicial review. To succeed in a review, Egg Films would need to demonstrate how the board exceeded its jurisdiction or what other related jurisprudence it may have overlooked in arriving at its decision.
There is an additional interesting element in all of this. In its reasons for decision, the labour board cited the Supreme Court of Canada decision, Health Services and Support – Facilities Subsector Bargaining Association, (2007):
…We conclude that the s.2(d) of the [Canadian Charter of RIghts and Freedoms] protects the capacity of members of labour unions to engage, in association, in collective bargaining on fundamental workplace issues. This protection does not cover all aspects of “collective bargaining,” as that term is understood in the statutory labour relations regimes that are in place across the country. Nor does it ensure a particular outcome in a labour dispute, or guarantee access to any particular statutory regime. What is protected is simply the right of employees to associate in a process of collective action to achieve workplace goals. If the government substantially interferes with that right, it violates section 2(d) of the Charter.
Overcoming this Charter matter alone presents a formidable challenge.
The Human Element, just a different way to manage