Dispute Resolution Under the Collective Agreement: Why I Won’t See You in Court.

In a previous article we talked about the elements of the negotiation between producer and talent and the importance of accurately reflecting that deal in the deal memo and later in the long form agreement. If the parties have successfully put to paper their desires for compensation and credits, transfers of rights and waivers, that’s the end of the story. Right? Not necessarily. What happens if a producer wants to fire talent or an actor fails to render all the services a producer may require? In short, what happens if the deal goes sour?

A deal memo or long form agreement may look like any other contract but in a unionized environment, it’s not good business to say “I’ll see you in court!” Once a producer becomes a signatory to, or agrees to adhere to, the relevant collective agreements that cover the talent on set and, once that talent accepts the deal memo provision making union membership a requirement, the deal memo is subject to the collective agreement.

Each collective agreement in the entertainment industry contains a provision that makes it clear that the collective agreement is a floor not a ceiling. In other words, members of the union may negotiate better wages and benefits than those provided for in the collective agreement, but they may not be paid less. Each collective agreement anticipates the existence of separate deal memos and long forms that are ruled by the terms of the collective agreement.

So why isn’t it up to the terminated talent or the peeved producer to decide whether lawyers and lawsuits will get them a better resolution to their dispute than the collective agreement mechanism? The B.C. Labour Relations Code requires that “every collective agreement must contain a provision for final and conclusive settlement without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes between the persons bound by the agreement ….” The Supreme Court of Canada has interpreted this clause to mean that the courts have no jurisdiction to decide a dispute arising from a collective agreement.

If a party takes a dispute arising from a deal memo to court, the court will send them back to the collective agreement process. The Labour Relations Code has taken away the court’s jurisdiction in the area of labour relations. Our lawmakers in Victoria have determined that the resolution of labour disputes without work stoppage – whether on the waterfront or the movie set – takes a higher priority than an individual’s right to have his or her day in court.

How is a dispute dealt with under the collective agreement? Each collective agreement in the industry contains similar provisions to deal with disputes. First, attempt to resolve the matter at the worksite; if the parties cannot agree on a resolution, file a grievance. The parties must attempt to resolve the grievance and, failing a resolution, may send the matter to arbitration. An arbitrator has the power to determine and resolve the issue, and may award monetary payments, adjustments or damages consistent with the particular collective agreement. The costs of the arbitrator are split between the two parties.

The benefits of the arbitration process do not only flow to legislators who wish for labour peace. Arbitration is less expensive and faster than going to court. Industry and union representatives know their business better than judges and juries. Under the collective agreement, the parties can rely on that expertise. Collective agreement dispute resolution mechanisms allow the parties the opportunity to work together to resolve differences and, if no resolution is possible, to put the issue in the hands of arbitrators who are familiar with the industry. Not a bad deal after all.