By Gerald Beaulieu
After joining the national board of CARFAC in 2004, I attended my first meeting in Ottawa in February, 2005. Since then, a lot has changed within the organization but one unresolved issue is still present.
During that meeting, I was informed that CARFAC and RAAV were negotiating with the National Gallery of Canada (NGC) to establish the first collective agreement under the Federal Status of the Artist legislation. They were talking about how much money would be paid to artists for the use of their art, work conditions and terms of payment – issues at the heart of any collective agreement.
In the past five years the NGC has dug in its heels. They have adopted a belligerent stance, minimizing the potential benefit to artists and disregarding the purpose of the Status of the Artist Act; to recognize the importance of the contribution of artists to the cultural, social, economic and political enrichment of Canada. The Act intended to improve the situation of professional artists by helping them obtain fair compensation for their work and the same social benefits that other workers enjoy.
CARFAC and RAAV will appear in front of the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT) on October 26th and 27th at which point we hope to resolve the issue.
The Federal Status of the Artist Act (SAA) was passed by Parliament in 1992 and arose from recommendations made by UNESCO concerning the Status of the Artist (Belgrade, 27 October 1980), to which Canada is a signatory.
The SAA promotes the status of living Canadian artists and encourages professional relations between artists and producers in Canada. Essentially, it is an artist’s labour law, allowing them to retain their status as independent contractors, while at the same time allowing associations representing artists to negotiate collective agreements or scale agreements with Federal institutions. Similar laws have developed at the provincial level in Saskatchewan, Ontario and Quebec.
The Act covers three classes of professional artists; authors of original works (including visual artists); performers; and technical contributors to productions.
The Act only applies to Federal institutions and living artists. CAPPRT, a four to six member tribunal with judicial powers, was created to oversee the regulations of the Act. Artist associations who want to represent their sectors must be certified by CAPPRT. CARFAC was first certified in 1998 to represent living Canadian visual and media artists (CAPPRT decision 29). RAAV was certified to represent artists in Quebec at the federal level in 1997 (CAPPRT decision 21).
CARFAC/RAAV worked jointly to issue a Notice to Bargain to the NGC in 2002. CARFAC/RAAV began negotiations with the NGC in 2004. CARFAC’s bargaining team consisted of Karl Beveridge, Pierre Tessier, and the presidents of both CARFAC and RAAV. In 2005, a Protocol Agreement between CARFAC/RAAV and the NGC was signed, outlining our relationship during negotiations. Between 2005 and 2007, copyright uses were included in all discussions during the negotiations. Throughout negotiations, respective fee structures were shared and discussed. A scale agreement, standard contracts for exhibitions, acquisitions, performance, and reproductions were developed, with references to copyright made throughout.
As President of CARFAC, I attended my first negotiations in the fall of 2006 at the NGC in Ottawa. They were a slow, arduous few days going over every line and clause in our collective agreement with little progress to show for our efforts except a few reworded phrases. It was at these negotiations that the NGC informed us that they were seeking a legal opinion on certain matters.
In the spring of 2007, the NGC replaced their staff negotiators with their lawyer at the firm, Gowlings. Following this announcement we received a copy of a legal opinion from Gowlings and the NGC outlining their perspective on the application of the SAA on matters of copyright. Their new bargaining position was that there was no place for matters pertaining to copyright in any negotiated collective agreement.
The NGC held firm to this position in a subsequent bargaining session held at the end of October in their Ottawa law offices. The NGC informed us that their lawyers do not believe we have the authority to negotiate matters pertaining to copyright under Status of the Artist Act. They were only willing to negotiate services. This essentially threw out four years of work spent developing contracts.
The new terms offered by the NGC were unacceptable to CARFAC/RAAV and we said so in a statement presented at the end of that negotiation session. We attempted to resume negotiations several times to get the NGC to soften their stance, with no success. This left us little choice but to file a complaint to CAPPRT for “bargaining in bad faith” which was submitted to the tribunal in April of 2008.
CAPPRT has never found a party guilty of bargaining in bad faith, although two other complaints have been filed to date. The Tribunal gives insight into how it interprets bargaining in bad faith in decision 40 rendered in January of 2003. It makes a distinction between “hard bargaining” which is permissible and “surface bargaining” which is making pretence of bargaining. The Tribunal states: “Surface bargaining is a term which describes a going through the motions, or a preserving of the surface indications of bargaining without the intent of concluding a collective agreement. It constitutes a subtle but effective refusal to recognize the trade union.”
A Tribunal hearing was scheduled for the fall of 2008, but that hearing never took place. The chair of the Tribunal resigned from his position to run in the Federal election that fall. That left the Tribunal without quorum to hear cases, a situation that persisted until late 2009.
While waiting for this situation to be rectified and with the appointment of a new director at the NGC, CARFAC/RAAV asked the NGC if they would agree to try mediation as a step to finding a solution to our current impasse. Mediation is a service offered by CAPPRT to consenting parties. The NGC agreed, a mediator was selected and dates were scheduled for November 2009. Our two-day session was cut down to one after the NGC’s negotiators could not meet with us the first day scheduled. This was not a good start. All discussions during mediation are confidential but I can tell you that it was completely unsuccessful. This sent us back to CAPPRT for a hearing to rule on our complaint. In late 2009 the Tribunal reached quorum. A hearing was first scheduled for April 7 and 8 but was later rescheduled to October at the request of the NGC.
Even though the Tribunal’s hearings are designed to allow for self-representation, we were happy to receive an offer from Ravenlaw, an Ottawa law firm specializing in human rights and labour law, to help us out. With the hearing approaching fast, our negotiating team, myself included, are busy preparing and we are confident in our cause.
So far the provisions of the SAA have proved to be a disappointment for the nation’s visual artists. These negotiations have dragged on for eight years, the longest in the tribunal’s history. In that time, one of the institutions that we began negotiating with, the Canadian Museum of Contemporary Photography, has disappeared. One of our principle negotiators has become a grandfather. Many individuals have entered and left the process without seeing results. Many other artist associations have entered into scale agreements. We’re still waiting.
Despite the difficulties we have faced, I believe it is important for organizations such as CARFAC to defend the few laws that we have for artists and Status is one of them. Consistently in its reports to Parliament, CAPPRT recognizes that “the Act falls short of the expectations of the many artists and producers who welcomed it when it was introduced.” They recognized the deficiencies and how they should be remedied. Unfortunately, there has not been any action.
The decision from the Tribunal on our case will come out a few months after the hearing. Whichever way it goes, it will have a permanent effect on the future of our organization and how we move forward with regards to the Status of the Artist Act. Wish us well in court and stay tuned.
Gerald Beaulieu is the President of CARFAC National, and CARFAC Representative on the CARFAC/NGC Negotiating Committee
Scale Agreement: A scale agreement is an agreement in writing between a producer and an artists’ association respecting minimum terms and conditions for the provision of artists’ services and other related matters. Scale agreements are binding under this law.
Notice to Bargain: A Notice to Bargain is a formal declaration by one party, in this case CARFAC/RAAV, requiring the other party to begin bargaining for the purpose of entering into a scale agreement.
Bargaining in bad faith: The term “bargaining in bad faith” implies that a party did not make every reasonable effort to enter into a scale agreement.
Certification: CARFAC’s original certification was deemed too limiting to be of practical use in establishing meaningful scale agreements. In 2003 it applied to CAPPRT for re-certification which was approved (decision 47). CARFAC asked the Tribunal to amend its certification order by changing the word “commissioned” to “engaged” and proposed that its sector description read as follows: “a sector composed of all independent professional visual and media artists in Canada who are authors of original works of research or expression, engaged by a producer subject to the Status of the Artist Act and expressed in the form of painting, sculpture, printmaking, engraving, drawing, installation, performance art, craft-based media, textile art, fine art film and video art, fine art photography or any other form of expression of the same type.”
As with any new venture there are growing pains and our first certification order failed to recognize the literal interpretation of legal wording. We therefore replaced the term “commissioned”, a term with specific connotations within the visual arts sector, by the term “engaged” to broaden the scope of negotiations CARFAC could pursue.
CARFAC’s re-certification order was opposed by four organizations: the P.E.I. Crafts Council, the Alberta Craft Council, the Nova Scotia Designer Crafts Council and the Canada Council for the Arts. None of their objections were upheld. Ironically, an intervention was received from the NGC agreeing with the expansion of CARFAC’s certification beyond a commissioned work of art.