Negotiation Process

This article provides an overview of the negotiation process under the Status of the Artist Act (Act), from the issuing of a notice to bargain to the conclusion of a scale agreement. It is meant to give parties involved in negotiations and researchers an overview of the steps involved in the process and some links to the relevant provisions of the Act.

Issuing a notice to bargain

To initiate the bargaining process, a certified artists' association or a producer can issue a notice to bargain (section 31 of the Act). It will usually consist of a letter. There are no set requirements in the Act as to the contents of a notice to bargain. It is suggested that the following information be included:

  • name of the organization issuing the notice;

  • copy of the certification order;

  • provision under which the notice is being issued (section 31 of the Status of the Artist Act, S.C. 1992, c. 33);

  • indication of the steps the recipient is expected to take (for example, they should phone you, you will phone them or you expect a response by a specified date).

A copy of the notice to bargain must be sent to the Minister of Labour in Ottawa, K1A 0J2 (section 31 of the Act). It is suggested that a copy also be sent to the the Canada Industrial Relations Board.

Meeting to bargain

The parties must meet within 20 days of the issuance of the notice to bargain or at a mutually agreed-upon later date (section 32 of the Act).

If there is no response to the notice to bargain, the party who issued the notice should take additional steps to initiate negotiations. Such steps could include follow up phone calls or letters. These efforts are important if a complaint alleging failure to bargain in good faith is filed at a later date. In that case, a party must be able to demonstrate that reasonable efforts were made to enter into negotiations. The determination of what constitutes "reasonable efforts" is made on a case by case basis.

Once the parties have determined how they intend to proceed with bargaining, meetings will be held and negotiations will begin. Parties must negotiate in good faith, that is, they must negotiate with the purpose of entering into a scale agreement.

Entering into an agreement

When the parties reach an agreement, a copy must be filed with the Minister of Labour in Ottawa, K1A 0J2 (section 33 of the Act). It is suggested that a copy also be sent to the Board. All disputes arising from the interpretation of the agreement must be referred to arbitration (section 36 of the Act).

What to do when problems arise

In the course of negotiations, problems may arise that could lead to a breakdown in bargaining. If this occurs, parties have various options, including the following. One or both parties may:

  • ask the Minister of Labour to appoint a mediator, or

  • file a complaint if it is believed that there is failure to bargain in good faith and/or

  • use pressure tactics.

Requesting assistance from the Minister of Labour

Under section 45 of the Act, the Minister of Labour may name a mediator to confer with parties who are unable to reach agreement and assist them to enter into a scale agreement. Such mediation is provided at no cost to the parties.

Filing a complaint with the Board

When a party believes that the other has breached the duty to bargain in good faith, the party can file a complaint with the Board pursuant to section 53 of the Act. The complaint must be filed within six months. The necessary forms for filing a complaint are available on the Board's website.

The following are examples of situations where there may be a failure to bargain in good faith:

  • refusing to meet to bargain;

  • refusing to bargain unless certain procedural conditions are met;

  • sending representatives to bargain who do not hold the authority to negotiate;

  • providing misleading or incomplete information;

  • not informing the other party of important decisions that may have a major impact on a sector;

  • seeking agreement to an illegal provision;

  • bargaining to impasse regarding the scope of an association's certification.

The Board may appoint a member or staff to assist the parties to settle the complaint. If the matter is not resolved after a reasonable period, the Board will hold a hearing, and either uphold or dismiss the complaint. If it is upheld, the Board will issue a Remedial Order which can be filed, if necessary for enforcement purposes, in the Federal Court pursuant to section 22 of the Act.

Applying pressure tactics

Under section 46 of the Act, either party may apply pressure tactics beginning 30 days after a scale agreement expires or six months after certification where there is no scale agreement. Pressure tactics include:

  • artists threatening to refuse to work or refusing to work;

  • work slowdown;

  • producers closing place of work;

  • suspension of a production;

  • refusing to continue an artist's engagement.

The duty to bargain in good faith continues even if pressure tactics are applied. At this point again, if one party believes that the other party has breached the duty to bargain in good faith, it can file a complaint with the Board pursuant to section 53 of the Act as described above in this article.

Should you need more information regarding the negotiation process under the Status of the Artist Act, please communicate with the Board.

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