PART IIProfessional Relations (continued)
Bargaining and Scale Agreements (continued)
Notice to Bargain (continued)
Marginal note:Duty to bargain and not to change terms and conditions
32 Where a notice to begin bargaining has been issued under section 31,
(a) the artists’ association and the producer shall without delay, but in any case within twenty days after the notice was issued, unless they otherwise agree,
(i) meet, or send authorized representatives to meet, and begin to bargain in good faith, and
(ii) make every reasonable effort to enter into a scale agreement; and
(b) the producer shall not alter, without the consent of the artists’ association, any term or condition of engagement, including the rates of remuneration, or any right or privilege of an artist or the association, that is contained in the scale agreement, until such time as pressure tactics are permitted under section 46.
Duration and Effect of Scale Agreements
Marginal note:Effect of scale agreements
33 (1) For the term set out in it, a scale agreement binds the parties to it and every artist in the sector engaged by the producer, and neither party may terminate the agreement without the Board’s approval, except when a notice to bargain is issued under subsection 31(3).
Marginal note:Scale agreement to be filed
(2) The parties to a scale agreement shall file a copy of the agreement with the Minister without delay.
Marginal note:Association of producers
(3) A scale agreement entered into by an association of producers binds, even in the event that the association is dissolved, each producer that
(a) is a member of the association at the time the agreement is signed and did not give the parties notice of withdrawal before the agreement was signed;
(b) not being a party to any other scale agreement in respect of the same sector, subsequently becomes a member of that association; or
(c) withdraws from membership in the association.
Marginal note:Saving more favourable benefits
(4) A scale agreement applies notwithstanding any inconsistency with a contract between an artist and a producer, but it shall not be applied so as to deprive an artist of a right or benefit under the contract that is more favourable to the artist than is provided for under the agreement.
(5) The Board shall assess what is more favourable to the artist under subsection (4) in relation to each right or benefit and shall compare the elements of each right or benefit under the scale agreement with the elements of each under the contract.
- 1992, c. 33, s. 33
- 2012, c. 19, s. 545
Marginal note:Board may change termination date
34 On the joint application of the parties, the Board may change the termination date of a scale agreement in order to establish a common termination date for two or more scale agreements that bind the producer or the artists’ association.
- 1992, c. 33, s. 34
- 2012, c. 19, s. 546
Marginal note:Duty of fair representation
35 An artists’ association that is certified in respect of a sector, or a representative thereof, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the artists in the sector in relation to their rights under the scale agreement that is applicable to them.
Content and Interpretation of Scale Agreements
Marginal note:Provision for settlement without pressure tactics
36 (1) Every scale agreement must contain a provision for final settlement without pressure tactics, by arbitration or otherwise, of all differences between the parties or among artists bound by the agreement, concerning its interpretation, application, administration or alleged contravention.
Marginal note:Where arbitrator to be appointed
(2) Notwithstanding anything in the scale agreement, a difference between the parties to an agreement that does not contain the provision for final settlement required by subsection (1) shall be submitted for final settlement
(a) to an arbitrator selected by the parties; or
(b) where the parties are unable to agree on an arbitrator and either party makes a written request to the Minister to appoint one, to the arbitrator appointed by the Minister after any inquiry that the Minister considers necessary.
Marginal note:Submission of difference to arbitration
(3) Notwithstanding anything in the scale agreement, a difference between the parties to an agreement that contains a provision for final settlement by an arbitration board shall, if either party fails to name its nominee to the board, be submitted for final settlement to an arbitrator in accordance with subsection (2).
Marginal note:Request to Minister to appoint arbitrator or arbitration board chairperson
(4) Where a scale agreement contains a provision for final settlement without pressure tactics of differences described in subsection (1) by an arbitrator or arbitration board and the parties cannot agree on the selection of the arbitrator or arbitration board chairperson, either party or its nominee may, notwithstanding anything in the agreement, make a written request to the Minister to appoint the arbitrator or arbitration board chairperson, as the case may be.
Marginal note:Appointment by Minister
(5) On receipt of a request made under subsection (4), the Minister shall appoint an arbitrator or arbitration board chairperson, after any inquiry that the Minister considers necessary.
(6) An arbitrator or arbitration board chairperson appointed pursuant to subsection (2), (3) or (5) is deemed to be appointed in accordance with the scale agreement.
Marginal note:Determinations not to be reviewed by court
37 (1) Every determination of an arbitrator or arbitration board is final and shall not be questioned or reviewed in any court.
Marginal note:No review by certiorari, etc.
(2) No order shall be made or proceeding taken in any court, by way of injunction, certiorari, prohibition, quo warranto, revision, evocation or otherwise, to question, review, prohibit or restrain an arbitrator or arbitration board in any proceedings under this Part.
Marginal note:Status of arbitrator or arbitration board
(3) For the purposes of the Federal Courts Act, an arbitrator or an arbitration board appointed pursuant to a scale agreement or this Part is not a federal board, commission or other tribunal within the meaning of that Act.
- 1992, c. 33, s. 37
- 2002, c. 8, s. 182
- 2012, c. 19, s. 547
Marginal note:Copy to be filed with Minister
38 A copy of every determination of an arbitrator or arbitration board shall be sent to the parties, filed with the Minister and, in the circumstances prescribed by regulation, made available to the public.
Marginal note:Powers of arbitrator and arbitration board
39 (1) An arbitrator or arbitration board has, in relation to any proceeding before the arbitrator or the board, the powers conferred on the Board under paragraphs 17(a) to (c) and the power to determine whether any matter referred to the arbitrator or the board is arbitrable.
(2) Where an artist’s services have been terminated or an artist has been disciplined by a producer for cause pursuant to the scale agreement and there is no specific penalty in either the agreement or the contract between the artist and the producer, the arbitrator or arbitration board has the power to substitute for the termination of services or the discipline any other penalty that seems to the arbitrator or the board to be just and reasonable in the circumstances.
- 1992, c. 33, s. 39
- 2012, c. 19, s. 548
40 (1) The arbitrator or arbitration board shall decide the procedure for hearings, and the parties shall be given the opportunity to present evidence and make submissions and may be represented by counsel or an agent or mandatary.
Marginal note:Determination of arbitration board
(2) Where a difference described in subsection 36(1) is submitted to an arbitration board, the majority of the board shall determine the issue, but if the majority cannot agree, the chairperson’s decision is the determination of the board.
Marginal note:Arbitration costs, fees and expenses
(3) Where the parties submit a difference described in subsection 36(1) to an arbitrator or an arbitration board, unless otherwise provided in the scale agreement or agreed by the parties, each party shall pay
(a) its own costs and the fees and expenses of any member of an arbitration board that it nominates; and
(b) an equal portion of the fees and expenses of the arbitrator or arbitration board chairperson, whether selected by the parties or their nominees or appointed by the Minister under this Part.
- 1992, c. 33, s. 40
- 2012, c. 19, s. 549(E)
Marginal note:Questions may be referred to Board
41 (1) An arbitrator or arbitration board shall refer to the Board for hearing and determination any question that arises in a matter before it as to the existence of a scale agreement, the identification of the parties to it or the application of the agreement to a particular sector or artist.
Marginal note:Arbitration proceeding not suspended
(2) Referral of a question to the Board under subsection (1) does not suspend the proceeding before the arbitrator or arbitration board, unless the Board so orders or the arbitrator or arbitration board decides that the nature of the question warrants suspension of the proceeding.
- 1992, c. 33, s. 41
- 2012, c. 19, s. 550
Marginal note:Filing of determination in Federal Court
42 (1) Any person or association affected by a determination of an arbitrator or arbitration board may file a copy of the determination, exclusive of the reasons therefor, in the Federal Court.
(2) The Federal Court shall register the copy of any determination of an arbitrator or arbitration board filed pursuant to subsection (1), and after registration the determination has the same force and effect, and all proceedings may be taken thereon, as if it were a judgment obtained in that Court.
Marginal note:Provision for settlement continues in force
43 (1) Notwithstanding anything in a scale agreement, the provision for final settlement required by subsection 36(1) remains in force after termination of the agreement and until such time as pressure tactics are permitted under section 46.
Marginal note:Power of arbitrator where agreement terminates
(2) Where a difference described in subsection 36(1) arises during the period beginning on the date of termination of the agreement and ending on the date that a period described in section 46 begins, an arbitrator or arbitration board may hear and determine the difference, and sections 36 to 42 apply.
Marginal note:Association dues to be deducted
44 At the request of an artists’ association, a scale agreement shall include a provision requiring the producer to deduct and remit to the association without delay from the remuneration of each artist subject to the scale agreement, whether or not the artist is a member of the association, the amount of the dues regularly paid by a member of the association in accordance with its by-laws.
Settlement of Labour Disputes
45 The Minister may, on request or of the Minister’s own motion, name a mediator to confer with parties who are unable to reach agreement and to assist them to enter into a scale agreement.
Prohibitions and Remedies
Marginal note:When pressure tactics are permitted
46 No artist, artists’ association or producer shall participate in, authorize or apply pressure tactics except during the period
(a) beginning thirty days after a scale agreement binding the producer and the artists’ association expires and ending on the day that a new agreement is entered into in respect of that sector; or
(b) beginning six months after the date of certification of an artists’ association and ending on the day that a scale agreement is entered into, where there is no scale agreement binding the producer and the artists’ association in respect of that sector.
Declarations respecting Pressure Tactics
Marginal note:Declaration — association’s pressure tactics unlawful
47 (1) If a producer alleges that an artists’ association has authorized or applied pressure tactics, or that artists have participated, are participating or are likely to participate in pressure tactics, as a result of which an artist was, is or would be in contravention of this Part, the producer may apply to the Board for a declaration that the pressure tactics are unlawful.
Marginal note:Declaration and prohibition of pressure tactics
(2) If an application is made under subsection (1), the Board may, after affording the artists and the artists’ association an opportunity to be heard, declare the pressure tactics to be unlawful and, if the producer so requests, make an order
(a) requiring the association to cease or revoke its authorization of the pressure tactics;
(b) enjoining artists from participating in those pressure tactics and requiring them, where applicable, to resume the work for which they were engaged; or
(c) requiring an artists’ association or any officer or representative of an association of which any artist subject to an order made under paragraph (b) is a member, to give notice of the order to all artists in the sector who are members of the association.
- 1992, c. 33, s. 47
- 2012, c. 19, s. 551
Marginal note:Declaration — producer’s pressure tactics unlawful
48 If an artists’ association applies to the Board alleging that a producer has authorized or applied pressure tactics in contravention of this Part, or is about to do so, the Board may, after affording the producer an opportunity to be heard, declare the pressure tactics to be unlawful and, if the association so requests, make an order
(a) requiring the producer or any person acting on behalf of the producer to renounce or to discontinue those pressure tactics and to permit the artists to resume their work, where applicable; or
(b) requiring the producer to communicate the contents of an order made under paragraph (a) without delay to all artists in the sector engaged by the producer at the time the order is made.
- 1992, c. 33, s. 48
- 2012, c. 19, s. 552
Marginal note:Order’s terms and duration
49 (1) An order that is made under section 47 or 48 shall be on any terms that the Board considers necessary and sufficient to meet the circumstances of the case and, subject to subsection (2), shall have effect for the period indicated in the order.
Marginal note:Application for supplementary order
(2) If anyone affected by an order made under section 47 or 48 applies to the Board and gives notice of the application to the parties named in the order, the Board may, by supplementary order, continue or modify the order for any period that is indicated in the supplementary order, or may revoke the order.
- 1992, c. 33, s. 49
- 2012, c. 19, s. 553
Marginal note:Prohibitions relating to producers
50 No producer or person acting on behalf of a producer shall
(a) refuse to engage an artist or to honour an artist’s contract, or discriminate against an artist with respect to engagement, remuneration or any other term or condition of engagement, or intimidate, threaten or discipline an artist, because the artist
(i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of an artists’ association, or participates in the promotion, formation or administration of an artists’ association,
(ii) has testified or participated in a proceeding under this Part, or may do so,
(iii) has made or is about to make a disclosure that may be required in a proceeding under this Part,
(iv) has made an application or filed a complaint under this Part,
(v) has exercised any right under this Part or participated in pressure tactics that are not prohibited by it, or
(vi) has been expelled or suspended from membership in an artists’ association for a reason other than a failure to pay the periodic dues, assessments and initiation fees uniformly required to be paid by all members of the association as a condition of acquiring or retaining membership;
(b) impose any condition in a contract of engagement that prevents or has the effect of preventing an artist from exercising rights under this Part;
(c) terminate an artist’s contract, or impose a financial or other penalty or take disciplinary action against an artist, because the artist refuses to perform any of the duties of another artist who is participating in or is subject to pressure tactics that are not prohibited by this Part;
(d) seek by intimidation, threat of termination of a contract, imposition of a financial or other penalty, or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an artists’ association, or to refrain from
(i) testifying or participating in a proceeding under this Part,
(ii) making a disclosure that may be required in a proceeding under this Part, or
(iii) making an application or filing a complaint under this Part;
(e) terminate the contract of, or impose any financial or other penalty on, an artist engaged by the producer, or take any disciplinary action because of the artist’s refusal to perform an act that is prohibited by this Part; or
(f) bargain for the purpose of entering into a scale agreement, or enter into a scale agreement, with an artists’ association in respect of a sector, if the producer knows or, in the Board’s opinion, ought to know that another artists’ association is certified in respect of that sector.
- 1992, c. 33, s. 50
- 2012, c. 19, s. 554
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