• First Reference
  • About us
  • Contact us
  • 24th Annual Ontario Employment Law Conference 📣
  • Blog Signup 📨

First Reference Talks

Discussions on Human Resources, Employment Law, Payroll and Internal Controls

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies
You are here: Home / Union Relations / NS labour board redefines what constitutes an employee and a bargaining unit

By Amery Boyer | 3 Minutes Read June 28, 2012

NS labour board redefines what constitutes an employee and a bargaining unit

international alliance of theatrical stage employees logo
Image: http://en.wikipedia.org

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:

  1. Is the worker being controlled by an employer or a client?
  2. 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.

Amery Boyer,
The Human Element, just a different way to manage

  • About
  • Latest Posts
Amery Boyer
Amery Boyer, CHRP, MBA is a Human Resources professional with extensive experience in human resources, staffing and employee relations for both the private and public sectors and various levels of governments. She was a contributing editor of The Human Resources Advisor, Atlantic edition published by First Reference.
Latest posts by Amery Boyer (see all)
  • Weighing the merits of a sound accident/incident prevention program - November 18, 2013
  • New Liberal Government plans to keep best and brightest and support persons with disabilities in Nova Scotia - October 15, 2013
  • Nova Scotia to increase access to pregnancy/parental leave in 2015 - September 17, 2013

Share this:

  • Twitter
  • Facebook
  • LinkedIn
  • Reddit
  • Pocket
  • Email
  • Print

Article by Amery Boyer / Union Relations / bargaining unit, Collective Bargaining, Egg Films, employment law, Industrial Relations, labour board, Labour Law, Nova Scotia, union, union certification, unionized construction sector, unionized film industry, unionized workplaces, Unions

Get the Latest Posts in your Inbox for Free!

Electronic monitoring

About Amery Boyer

Amery Boyer, CHRP, MBA is a Human Resources professional with extensive experience in human resources, staffing and employee relations for both the private and public sectors and various levels of governments. She was a contributing editor of The Human Resources Advisor, Atlantic edition published by First Reference.

Footer

About us

Established in 1995, First Reference is the leading publisher of up to date, practical and authoritative HR compliance and policy databases that are essential to ensure organizations meet their due diligence and duty of care requirements.

First Reference Talks

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies

Main Menu

  • About First Reference
  • Resources
  • Contact us
  • 1 800 750 8175

Stay Connected

  • Facebook
  • LinkedIn
  • Twitter
  • YouTube

We welcome your comments on our blog articles. However, we do not respond to specific legal questions in this space.
We do not provide any form of legal advice or legal opinion. Please consult a lawyer in your jurisdiction or try one of our products.


Copyright © 2009 - 2023 · First Reference Inc. · All Rights Reserved
Legal and Copyright Notices · Publisher's Disclaimer · Privacy Policy · Accessibility Policy