Sep 252015

On a Potential Constitutional Challenge to the Universities Accountability and Sustainability Act and the Limitations of Legalistic Labour Strategies

How should workers fight repressive legislation, in the courts or in the streets? While a favorable judgement can bring concrete benefits to workers, there are serious drawbacks to a legalistic strategy. Pursuing a court challenge is an enormous drain on a union’s resources, time, and militancy. This article provides an overview of the Universities Accountability and Sustainability Act, an opinion on whether or not it is constitutional, and a discussion of how labour legality shapes workers’ struggles.

Bill 100, now the Universities Accountability and Sustainability Act, passed May 11th, 2015. It passed despite vocal protests of university workers and their allies in the streets, in the press, and in Province House. It passed notwithstanding a clamour of objections that the Act was blatantly unconstitutional. Now that the initial battle against the Act is over, workers have a lull to analyze their legal rights and consider the terrain on which they want to continue their struggle.

How does the Universities Accountability and Sustainability Act affect workers’ right to strike?

The Act allows universities to initiate a “revitalization planning process” after getting the approval of the school’s Board of Governors and giving notice to the Minister of Labour and Advanced Education. If the university has unionized employees, and is determined by the Minister to have a “significant operating deficiency” the university “may elect” to implement section 8 of the Act. Section 8 prevents unionized workers from striking and the university from locking out unionized workers. It also bans “any person or organization” from “doing anything” or “failing to do anything” that would “aid or abet a unionized employee” to not comply with the Act. So, if anyone were to encourage workers to strike during a revitalization period they too would be in violation of the Act. Any union member who violates section 8 is liable for a fine of up to $100, 000 in total, or for a fine of $10, 000 per each day of continuing violation. Any person (such as an aiding-or-abetting labour organizer) who violates section 8 can be fined $200 per day for violating section 8, or up to $1000 in total.

Is the Universities Accountability and Sustainability Act Unconstitutional?

Relevant Sections of the Constitution:

s 2 (d) of the Canadian Charter of Rights and Freedoms, which guarantees the freedom of association

s 1 of the Canadian Charter of Rights and Freedoms, which gives the government the ability to justify its rights infringement by demonstrating it is a “reasonable limit in a free and democratic society.” Procedurally, this means that courts will first consider the severity of the Charter infringement, then consider a section 1 justification for the government’s actions.

Many labour organizations and activists argue that section 8 is unconstitutional, since the Canadian Charter of Rights and Freedoms protects the right to strike. This claim is staked mostly upon the precedent of Saskatchewan Federation of Labour v. Saskatchewan, decided by the Supreme Court of Canada in January 2015. In that case, the court stated that “to determine whether there has been an infringement of s. 2(d) of the Charter, the test is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with a meaningful process of collective bargaining.”

The Saskatchewan case was decided partially in the favour of the Federation of Labour. The piece of legislation which the Supreme Court ruled was unconstitutional prohibited public service workers who were deemed by the government to be performing “essential services” from striking. The court found that the legislation violated s. 2 (d) of the Charter’s right to freedom of association in a way that could not be justified by the government under section 1 of the Charter. Section 1 holds that no right guaranteed in the Charter is absolute. The government always has the opportunity to defend its legislation on the basis that its rights-infringing actions can be “demonstrably justified in a free and democratic society.”

This precedent is promising if Nova Scotian workers were to challenge the Act in court. Some aspects of the Act parallel the Saskatchewan legislation that the court struck down. It seems probable that the Act’s section 8 outright ban on strikes during revitalization periods would meet the criteria for a breach of s. 2 (d). In the Saskatchewan case, the court decided that a similar flat ban on designated essential service workers’ right to strike violated s. 2 (d). A strong argument could be made that even though section 8 (1) of the Act states that the prohibition on strikes does not preclude the university from engaging in collective bargaining with workers, the legislative infringement with the right to strike remains “a substantial interference with a meaningful process of collective bargaining,” the test for a s. 2 (d) Charter infringement outlined in the Saskatchewan case. The strike is workers’ most powerful weapon. To deprive workers of the right to use it is arguably a very substantial interference in meaningful collective bargaining.

It is likely that the bulk of a court’s analysis of the Act, as with the Saskatchewan case, would concern whether the government’s legislation could be justified under s. 1 of the Charter. In the Saskatchewan case, the court deemed the “determinative issue” to be whether or not the government minimally impaired workers’ charter rights. Could they justify their actions by claiming they impaired rights “no more than was necessary?” The court found in the Saskatchewan case that workers’ rights were not minimally impaired for a couple of reasons. First, because the Saskatchewan legislation gave to the province the unilateral authority to deem any public service “essential” and therefore to prevent any public employee from striking. The court deemed such an authority “beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike.” Second, the legislation did not allow for any alternative route through which collective bargaining could be maintained in the midst of a strike ban. The court suggested that if the legislation allowed for an arbitration process or another “one of the meaningful dispute resolution mechanisms commonly used in labour relations” the strike ban could be justified. As it stood, the Saskatchewan legislation’s rights infringements could not be “demonstrably justified” under section 1.

Hence, the Act is similar to the overturned Saskatchewan legislation in one significant way, and different in two others. They are similar because both Acts outright ban strikes without setting out an alternate method for “meaningful dispute resolution”, such as an arbitration process, despite the fact that Nova Scotia’s legislation does allow for continued collective bargaining. A court might find that nonetheless, the Nova Scotian Act does not “minimally impair” workers’ rights and hence that the government’s actions are not “demonstrably justifiable” under section 1.

However, a significant rationale for the Supreme Court’s finding in the Saskatchewan case was the government’s assumption of the power to deem who was an essential service provider and hence who could be banned from striking. A court may be inclined to find the Nova Scotian legislation to be less of an egregious violation of workers’ rights since it applies to workers within one designated field, not to any public employee at the unilateral discretion of the government. Another potentially significant difference between the cases is that in Saskatchewan the government could claim the legislation was necessary for the continued provision of “essential public services,” an objective the government noted was “self-evidently a pressing and substantial objective.” It is unclear if a court would find the Nova Scotian government’s goal of preserving university financial health a similarly “substantial and pressing objective” worthy of potentially justifying rights infringements.

On the whole, it seems that if the Nova Scotian Act was challenged a court would follow the precedent of Saskatchewan Federation of Labour v. Saskatchewan and find the legislation unconstitutional. But before deciding to pursue a case in court, it is important to consider the extent to which the law is subject to judicial interpretation.. Constitutional rights are essentially whatever judges say they are at a given point in time. The Supreme Court of Canada has reversed itself on a number of occasions. The meaning of a right is always filtered through the circumstances of the particular case. Unspoken subtexts, such as how sympathetic the judge is to the right-seeker, seem to shape how courts define workers’ rights.

Labour and Legality

The court system can be a powerful tool. If legislation is found unconstitutional by a court it can be altered or struck down altogether. However, there are serious drawbacks to taking a case to court. The legal system in a liberal capitalist state serves primarily to guarantee individual property rights while promising formal equality to all. As such, it obscures profound inequalities between classes of people, such as workers and employers. Traditionally, Canadian courts prioritize the rights of property owners over those of workers. By using the courts to assert rights, workers are forced to speak a language not their own and pretend the system truly offers equal justice to all.

Court battles can also be an enormous drain on unions’ time and financial resources. Though the unconstitutional Saskatchewan legislation referred to above was passed by the provincial government in 2008, the final court decision was released in January 2015. Even so, the legislation remains legally valid until 2016. If Nova Scotian workers decide to challenge the Act in court it will doubtless absorb years of energy. Stupendous legal fees will swallow precious union resources.

Liberal capitalist states rule through legality. The system of industrial legality established in Canada after World War Two defines what workers’ actions are legitimate and which are illegal. As such, labour law is a system of concessions used to divert the struggles of working people down particular channels. While workers may win tenuous rights by playing the state’s legalistic game, they often sacrifice their own militancy in the process. When workers win legal victories, the right is one bestowed from above, not asserted from below.

Why Would the Government Pass Legislation of Dubious Constitutionality?

The Act must be understood within the broader context of attacks on Nova Scotian workers. Judy and Larry Haiven of Saint Mary’s University calculate that Nova Scotia’s real GDP per capita increased 54% since 1981. This growth was fuelled largely through a 40% increase in productivity. They point out that real median earnings for full-time workers dropped 5% in the same time period. Real average earnings have increased slightly, but only due to gains won by highly skilled unionized workers, such as nurses and university faculty members. Moreover, while between 1991 and 2006 the proportion of the net domestic product enjoyed by Nova Scotian workers declined 8.3%, owners of capital captured 200% of the increased wealth.[1] Skilled, unionized workers are therefore the only group within the Nova Scotian labour market to successfully resist cuts to wages during decades marked by increased productivity and a widening income gap between workers and capital owners.

Since the late 1970s, Nova Scotia’s elites have successfully managed to claw back the labour rights that were won by workers in the postwar decades. The current Liberal government has accelerated the capitalist counterattack. Judy and Larry Haiven argue that the Liberals are targeting skilled public sector workers precisely because they form the last stronghold in a market of declining wages.[2] While nurses were 2014’s public enemy number one, university workers are the target of the latest round of attacks.

The Liberal government thinks it’s a win-win to flout the law. The government believes it can wrap-up its assault on university workers long before the Act is overturned by a court. The Liberals may even be taunting workers with such dubious legislation in the hopes that unions exhaust their resources and energy in a protracted legal battle. The Province can flout the law and get away with it because the legal system tempts workers to play a rigged-game.

Rights and Power

Rights are an abstract concept. People speak of rights both as an expression of what is just or fair, and in the sense of an enforceable legal right that is recognized by the state. Workers’ legally recognized rights are a reflection of their power. It was only due to the strength of workers’ struggles in the nineteenth and twentieth centuries that the state grudgingly recognized workers’ legal rights to unionize and strike. Compulsory collective bargaining legislation only became appealing to the federal government after a wave of wildcat strikes during the Second World War. Workers’ refusal to obey anti-strike legislation made the federal government fear another post-war general strike, like that which occurred in Winnipeg in 1919. As such, the framework for modern Canadian labour law is a direct product of workers’ struggles outside the legal system.[3]

Moreover, while workers’ rights may exist on paper, they only matter when workers have the power to enforce them. It will always be in the interest of capitalist states to legislate workers into submission. It is up to workers to make it politically foolish to do so. Ultimately, workers’ rights are not granted by the Supreme Court of Canada. They derive from our collective power. They are a reflection of our ability to struggle and strike in solidarity with one another.


[1] Judy and Larry Haiven, “Changing the Face of Labour Law in Nova Scotia,” The Canadian Centre for Policy Alternatives, July 2015.

[2] Judy and Larry Haiven, “Changing the Face of Labour Law in Nova Scotia,” The Canadian Centre for Policy Alternatives, July 2015.

[3] For further reading on this topic, see Judy Fudge and Eric Tucker, Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900-1948 (Toronto: Oxford University Press, 2001).

Sep 182015

Katrin MacPhee and Mark Culligan, members of Solidarity Halifax, write in The Coast about Canada’s role in the Syrian refugee crisis. 

This country deserves the blame for failing to act and contributing to a crisis.

Alan Kurdi’s death on a Turkish beach has weighed heavily on the consciences of Canadians.

The discovery that an NDP MP personally appealed to Immigration and Citizenship minister Chris Alexander on behalf of the Kurdi family has sparked moral outrage and a call to action.

Ottawa must submit to the demands of human decency and immediately settle as many Syrian refugees as possible. What is missing so far from the public conversation, however, is a clear discussion of how the Harper government helped create the conditions for crisis in Syria through its environmental and foreign policy.

The current refugee crisis is an environmental crisis. Between 2006 and 2011, Syria experienced its worst drought on record. Francesco Femia and other analysts argue that the drought, which displaced as many as 1.5 million Syrians, was the true precipitating cause of the civil war. The Syrian civil war is the latest in a series of climate conflicts, from Darfur to Nigeria, in which desertification has forced the dispossessed to take up arms or flee across borders.

Canada’s climate crimes are infamous. Canada was the first nation to withdraw from the Kyoto protocol, and the only country to withdraw from the UN Convention to Combat Desertification. At every turn, Canada’s ruling class has opposed the implementation of serious domestic and international policies to combat climate disaster. The world’s poorest and most vulnerable are on the front lines of climate conflict. While Canadian capitalists have benefited from the earth’s destruction, they are shielded from its impacts.

Ottawa owes the Syrian people justice because it is party to the conflict that drives them from their homes. Ottawa played cheerleader while the Americans armed and trained anti-Assad forces. Since November 2014, our air force has conducted more than 140 airstrikes against ISIS targets. The Syrian civil war is sustained by western interventions and made more devastating for civilians by relentless bombing in ISIS-controlled areas. Harper claims that we are fighting ISIS to protect civilians from the “international jihadist movement,” but the Pentagon recently reported that one such bombing killed up to 27 civilians on 21 January. If the goal is to exercise the right to protect, wouldn’t refugee sponsorship be a more effective way to save lives?

The sad truth is that our foreign policy is guided by political rather than humanitarian concerns; weapons contracts are traded for campaign donations, military jobs win votes and tough-on-terror posturing distracts the public. The Harper government sabotaged its own quota for Syrian refugees: 2,347 Syrians have been admitted, even though 11,300 places were promised in 2013. Alan Kurdi and his compatriots are victims of a refugee policy that requires them to go to near-impossible lengths to prove their innocence.

Of course, not all Canadians benefit equally from the violence of our environmental and foreign policies. These acts are committed for the benefit of the capitalist class against the wishes of the majority. We must throw open our borders and we must oppose the crimes committed in our names. To do both, we must engage in the long-term struggle for actual democracy. Only with the creation of a true peoples’ government will the creation of refugees through capitalist violence cease.

Note: Articles published by Solidarity Halifax members do not necessarily reflect positions held by the organization.


Aug 242015


iatse lockedoutIn March, Egg Studios locked out 290 freelance film technicians, members of IATSE Local 849 after failing to reach a second collective agreement. Sébastien Labelle writes on the ongoing dispute. Sébastien is a self-employed actor and member of ACTRA. He is also VP (Culture & Mayworks) at the Halifax-Dartmouth & District Labour Council, a member of Solidarity Halifax and a former union organizer with the Service Employees International Union Local 2. This post was originally published by the Halifax Media Co-op

Debate seems only to have escalated since I last wrote down my thoughts about the labour dispute at Egg Films (more recently re-branded as “Egg Studios”). I’ve received cordial personal rebuts to my arguments, but the online Egg Films PR campaign has taken an increasingly unsavoury intensity.

Egg ChardinLet me be clear here before I go on that my ire is not directed at employees of Egg Films / Egg Studios – whether full-time or contract. My conversations with any of them have always been respectful and friendly. What I take issue with here is the online PR campaign directed by Egg Films, which is egregiously distorting facts and rapidly evolving into an assault on unions in general. To lead this campaign, Egg Films has properly taken the first step in any union-busting playbook, which is to follow the advice of a union-busting consulting firm. In this case: Chardin Consulting* led by Michael Kydd, formerly the President of the anti-union construction outfit Merit Contractors (I’ll let you do your own Google searches).

I’ll also disclose that I’ve had little direct contact with the IATSE 849 members affected by this labour dispute, but as a former union organizer who helped workers in the private sector form unions in their workplace, I recognize a union-busting campaign when I see one.

Over the last month, many of my colleagues in the arts community have expressed increased confusion about the dispute. To help, I thought I’d make an attempt here to unwind some misinformation being spun on the matter.

There’s a lot to respond to, but I hope I’ve made the following comprehensible. Here we go:

Employee recognition

While, as of late, Egg Films has been flooding its social media channels with cries of “let them vote!,” their legal strategy can almost entirely be summed up as “let NO ONE vote!”

In previous months, Egg Films had repeatedly argued on social media that the IATSE 849 members it employed (prior to locking them out) were not employees of Egg Films, but rather independent contractors who should therefore not be permitted to unionize as employees of Egg Films. Judging from the Labour Board document laying out their ruling on the matter, this has also served as Egg Films’ main argument when challenging the certification through legal means.

On this matter, the Labour Board has ruled that the workers in question must be considered employees. Otherwise, the right to collective bargaining as a unit of dependent contractors would be denied. This decision was arrived at in order to uphold the spirit of Nova Scotia’s Trade Union Act and to respect the recent Supreme Court of Canada rulings which determined that the right to collective bargaining is a constitutional right. The Supreme Court of Canada has determined this primarily through interpreting Section 2(d) of the Charter of Rights and ruling that Freedom of Association must apply to the right to form a union. The Labour Board ruled that in order to provide these workers the ability to unionize, they would need to be considered dependant of an industry rather than a single employer.

Provisions regarding this type of work engagement are made within the Trade Union Act for the construction industry where the workers are dependent of an industry comprising multiple employers. Despite this, construction workers retain the ability to unionize their multiple work environments individually and cumulatively in order to secure the right to associate and bargain collectively for workplace improvements.

Because the nature of contract employment in the film and TV industry is similar in many respects to employment in the construction industry, there is already ample precedent of these same considerations granted for IATSE certifications elsewhere in Nova Scotia and across the country. Although in Canada, this has until now been restricted to non-commercial work environments only, IATSE certifications of this nature do exist in the US and are quite common there within the commercial production industry. The Labour Board simply followed customary practice to ensure that the right of workers to unionize is respected regardless of the contractual nature of their work for multiple employers.

It can certainly be argued that the Trade Union Act is antiquated in how it divides a set a provisions for certification in the construction industry and another single set of provisions to cover certifications in every other industry under the sun. This binary articulation leaves workers such as those affected here in a grey zone where the Labour Board is forced to make concessions in order to protect workers’ rights until new legislation is drafted that better reflects current labour markets.

The Vote

While Egg Films’ very expensive legal strategy has almost exclusively focused on the matter of employee recognition and making sure NO ONE could have the right to vote, their social media PR campaign hypocritically focuses instead on claims of “undemocratic behaviour” on the part of IATSE, whom they blame for not allowing ENOUGH people to vote.

The absence of these claims from their legal strategy at the Labour Board reflects the fact that Egg Films has no legal grounds here. However, they’ve made very good use of crafty PR spin about democracy to pull liberal heart strings and detract people from the fact that they’ve been fighting all the way to the Supreme Court of Canada to strip away ANY of their contract employees’ right to vote at all.

But, lets look at their argument and also examine how a union certification vote works in the first place.

Egg Films likes to harp on the fact that only five people voted in response to the union application. When considering that IATSE 849 counts approximately 350 members, this does seem to constitute a very low level of voter participation and therefore poor representation of the membership’s opinion on the matter. But in order to understand what happened here, it is first very important to understand what rules a union must abide by in order to have their certification granted by the Labour Board. These rules, by the way, do not favour unions and make it extremely difficult to certify where contractual employment relationships exist.

It should be clearly understood that for votes on union certification in any workplace in Nova Scotia, or any jurisdiction in Canada, it is not the union (or the employer) who determine the eligibility of who gets to vote. That power is solely and exclusively in the hands of the Labour Board in this province (as it is in other jurisdictions). The vote is conducted by the Labour Board (not the union or the employer), and the Labour Board determines who is eligible to vote based on criteria outlined in the Trade Union Act and associated Regulations.

In usual circumstances, when the Labour Board is determining eligibility to cast a ballot on a union certification, only workers that are employed by the employer in question both on the day of the application and on the day of the vote are able to cast a ballot. This is to prevent the employer from suddenly hiring extra voters ahead of the vote. In this case, this presented a complication since employment contracts on a film shoot are so short that no workers would have been employed long enough to cover both dates. Because of this, the Labour Board granted a concession already afforded in the construction industry where those who cast ballots are required only to have been employed on the day of the application. Workers can vote regardless of the fact that their contract has ended before the vote can take place a week or so later.

Egg Films has argued that many workers could not cast a ballot due to the fact that they were by that time hired onto another project which prevented them from leaving work to make it to the vote. For this, Egg Films of course points the finger at IATSE, but the union has no say in the matter. Again, a union certification vote is entirely managed by a government third party – the Labour Board – in order to prevent tampering from either the union or the employer. The Labour Board chooses the date and time of the vote and all the union can do is hope that workers will be available to go vote. This is a huge hurdle to union certification in short contract situations such as at Egg Films.

In order to certify a bargaining unit at Egg Films, IATSE has had to wait for an opportunity where enough workers out of its 350 members, or any other supporters of forming a union, would work together on a same day and then be available to go vote whenever the date and time were set by the Labour Board. According to Egg Films’s statements to the Labour Board, they only shoot 10 to 15 days per year and only on very large projects will they hire more than a dozen contract workers. Most shoots only require 3 to 5 workers making it too risky to even try to apply for a union vote.

In this case, the application was filed on the day of a very large shoot where about 35 workers were employed by Egg Films. Only 12 of those were already IATSE members. We’ve heard that many of those members were employed through another project on the day of the vote and could not cast a ballot. Others perhaps have chosen not to vote at all. That also is an option and, of course, their choice. That still leaves the 20 or so workers who were not IATSE members and therefore people whom the union did not necessarily have a means to contact. The employer, however, does have means to contact them (they have an employment contract with them, and presumably have contact information so they can communicate with them, send them cheques and contract their work).

In fact, the employer has the legal responsibility to inform all affected employees about the vote. Because a union won’t necessarily have the ability to contact everyone, the onus is on the employer – not the union – to get its own employees to go vote. The union’s responsibility is to provide evidence that it counts 40% membership among those eligible to vote (which it did) in order to trigger the vote.

Egg Films is doing all it can to portray IATSE as villainous by blaming the union for things it has no control over when in fact it is Egg Films who bears responsibility for not properly notifying their employees about the vote.

To IATSE’s credit, they waited for an opportunity where there would be as many workers as possible eligible to vote. They applied for union certification on a day of shooting where about 35 workers would be eligible, which, as Egg Films admits, is highly unusual. They gave as best an opportunity they could, under the existing rules, for workers impacted to have a chance to vote, given that the date of the vote, the voting times and the voting location are chosen solely by the Labour Board and not by the union or the employer.

Egg Films also admits that IATSE made phone calls to ensure that their members knew about the vote and encouraged them to exercise their right. Ultimately, five workers made it to the vote. Some couldn’t make it, some chose not to go, others who were not already IATSE members might not have been aware perhaps because Egg Films didn’t inform them. But in the end, the majority of those who did vote, voted in favour.

The certification is therefore granted. This has been upheld all the way up to the Supreme Court of Canada. The certification is legitimate.

What about the 350 members?

Wouldn’t it make more sense to have the 350 members vote on the matter? Why yes, it would. That would be lovely, if only it were legal!

Since all IATSE 849 members are potential employees of Egg Films, it would make better sense to have them all cast a ballot to vote on whether or not to have this employer legally bound to recognize their union and negotiate with it over matters of employment.

So why doesn’t labour law operate this way? Because employers would quickly argue that this would give unions an unfair advantage. Imagine: all 350 members can vote – all are already union members, only the union has contact with most of them or even the ability to contact them. It’s easy to guess what the outcome would likely have been if all 350 had been given the ability to cast a ballot on the day of the vote (before all the spin hit the fans).

While Egg Films likes to decry the certification process as lacking democracy, if this alternative were actually permitted, they (and all the anti-union lobby groups they are so cozy with) would scream to high heaven. This would especially anger Micheal Kydd, their friend from the PR consulting firm whose previous employment included union-busting in the construction industry.

Egg Films might respond that only those who have worked for Egg Films should be allowed to vote. But these are contract positions, any of the 350 may be contracted or no longer contracted in the future. This also excludes the non-IATSE members on contract, or who could some day be on contract with Egg Films.

This is why the labour law states that only those who have worked on the day of the application can vote. No one else who may or may not potentially, some day, work or not for the employer. Only those who are there and work on the day of the application for certification.

So, for its 350 members, IATSE waited for the best opportunity it could offer, where up to 35 people (including 12 members) could have the chance to vote, when normally only 3 to 5 would have that chance.

And don’t forget, Egg Films’ legal argument has been that NO ONE should vote! They’ve spent thousands upon thousands in courts arguing that nobody – not a single IATSE member or contract technician – should have had the ability to vote at all. Regardless of what they say on social media.

Lastly, on the matter of voting, Egg Films claims workers were bullied into voting union, but the only quote they have is from someone saying they got a call informing them of the vote and being asked if the union can count on their support. This hardly sounds like bullying. IATSE representatives were evidently making sure anyone who might be eligible to vote (and for whom they had contact information to reach) was informed about when it would happen and then polling them about support like any political party does with their members during election time in order to gauge the odds of success. At least, that’s what the only evidence provided by Egg Films suggests to me.

Labour law

The owners of Egg Films like to cry victim by saying that both the union and the Labour Board took advantage of the fact that they did not know or understand labour law. I have very little sympathy for employers managing a leading company in the region who say they don’t know labour law. It’s about time they paid attention to the laws that govern how they should be operating. Also, following the application, they’ve hired the services of one of the leading (and very pricey) employer-side labour law firms in the province. So, I’m sure they’ve had pretty solid schooling on the law when addressing the Labour Board following the application. From the lengthy Labour Board decisions and Nova Scotia Appeals Court ruling, it seems clear that Egg Films has had competent legal counsel throughout.

Egg Films has also repeatedly accused IATSE of illegal machinations. Yet, the Labour Board’s report makes no mention of any such claim brought to their attention. If there was wrong doing, why hasn’t an Unfair Labour Practice complaint been filed against the union by Egg Films? Why wasn’t it mentioned during hearings about the certification? Egg Films keeps claiming on social media that IATSE cheated, but have made no legal complaints.

To date, the only Unfair Labour Practice complaint on this issue has been filed by IATSE against Egg Films, and these charges will be heard this month at a full hearing of the Labour Board which will be conducted over a few days.

The truth is that IATSE has followed all the rules to win the certification and Egg Films has no legal grounds to support any accusations of malfeasance. Egg Films’ appeals to throw out the certification have been rejected by every court all the way up to the Supreme Court of Canada.

Impact on the business

The owners of Egg Films have also often shed crocodile tears about how unionization will make them non-competitive and undermine their business. They’ve also made this claim at Labour Board hearings. However, the Labour Board report states that little evidence was provided to prove that certification would have ruinous impacts on the business.

The Coast recently reported that Egg Films has an annual revenue of $4 million. Surely, they can afford social safety net contributions for the occasional contract workers they hire. I’m sure this would not hamper their noble charitable activities in the community.

One could speculate that the amount that Egg Films has spent on legal counsel and other costs to fight this certification (including being ordered by the Supreme Court of Canada to pay IATSE’s legal costs related to Egg Films’ attempt to have the Supreme Court hear a further appeal on the certification) far out-weigh any possible costs that Egg Films could have incurred in providing Workers’ Compensation, Employment Insurance and pension coverage to these workers.

They didn’t show the contract to workers

Egg Films has also said that, during negotiations, it had offered a contract containing all that the workers had asked for, but that the union negotiating team (which comprises workers) refused the offer without showing it to the membership.

Lets remind ourselves here that IATSE has stated that wages are not their primary concern at Egg Films and that what’s being sought by the union is employer contributions to EI, pensions and Workers’ Compensation so as to ensure that workers have the ability to build essential safety nets despite making a living through a patchwork of contracts.

Egg Films has posted on their website the offer in question. A particular clause stands out in this contract: the one that states that the agreement and union representation are only in effect for productions costing over $110,000. I would have to guess here, but considering how much local short films cost, it seems that such a contract would have pretty limited application and therefore not be of much use to the workers. Workers do the same job whether the overall costs of the production exceed $110,000 or not, and it seems obvious that their rights under a union contract should be upheld no matter what the employer decides to charge for their services (which is entirely out of the control of any of the workers covered under the certification).

Of course, a negotiating team won’t present offers made by an employer to all members for a vote every time an offer is made. This would be a terrible waste of everyone’s time. They will only present an offer to the broader membership once it has arrived at a tentative agreement with the employer that it considers worthy to vote on and which it can recommend to the membership. This is what they are entrusted to do by the membership. Obviously, this offer was not deemed worthy of a vote and the employer chose to end negotiations and lock out the workers rather than pursue a course that could lead to a tentative agreement.

Let’s not forget also that Egg Films has operated under a union contract for a whole year. This first contract was arbitrated by the Labour Board following a ruling that Egg Films had failed to make the necessary efforts to negotiate with the union. With the expiration of this contract, Egg Films has resumed their previous practice by refusing to fairly negotiate and once more refusing to even recognize the union. Again, their legal argument here rests primarily on their claim that none of the workers had a right to vote on forming a union at all.

The Lock out

Egg Films locked out IATSE members before the union made any moves towards a work stoppage. People being prevented from working is a result of the employer’s decision. IATSE has no other option than to prevent other members from bypassing those locked out or else those who are locked out will never have a chance to work there again. Egg Films would simply have the ability to employ other skilled union members to fill their jobs. Of course, Egg Films is currently doing this with non-union workers, but if a union were to allow its own members to replace locked out workers, or otherwise facilitate the operations of an unfair employer, it would immediately loose any leverage it has to demand a return to work for those locked out, dooming them to perpetual unemployment at Egg Films.

Holding a collective stand is the only way a union can protect the rights of its members.

The crew didn’t want this

It’s become clear that there are dissenting voices from within the union regarding the labour dispute. And Egg Films is taking every chance it has to magnify this dissent. The fact that unhappy members feel unrepresented by their union is terrible. No question. IATSE has to take a serious look inwards to address why this is happening.

Evidently, IATSE has failed to adequately educate and consult its members about what it does, how it functions, and the importance of organizing non-union work environments. But, really, the blame doesn’t lie only on IATSE here. The whole labour movement is dreadfully suffering from a mix of unwillingness and inadequate resources being dedicated to educating union members about these things. Popsicle ads from the Canadian Labour Congress really doesn’t cut it. It’s no wonder that union support in society has been at such a low and that companies can repeatedly spin blame on unions for economic and workplace woes. And this, despite repeated studies that prove unionization improves workplace conditions, which then leads to overall improvements to our economy and society as a whole (Labour Rights, Inequality and Democracy; Labour unions in the 21st century?).

I hope the labour movement is paying attention to this dispute because it illustrates very clearly what will only continue to happen if union members are not properly engaged, consulted and educated about union organizing. Likewise, I hope union members generally are also paying attention to this dispute and will not pass up future opportunities to be involved in union activities in order to gain agency within their unions.

As I’ve mentioned before, within the existing rules for union certification, IATSE filed for application on a day where a high percentage of affected workers would be eligible to vote. Not everyone could make it on the day of the vote, but that’s out of their hands. They don’t choose the day of the vote, only the day of application. They don’t choose who is eligible to vote either, as the Labour Board solely determines that based on the law.

What also needs consideration is that Marcel Boulet, who is now President of IATSE 849, was elected by members into that position after the untimely death of their previous Local President. Boulet was a technician who supported the union drive and played an active role in it. His subsequent election as leader of the union serves as a testament of the IATSE 849 membership endorsing his support for unionization. Why would the membership elect him if they did not place trust in his actions and leadership after this very public union drive?

So while there is certainly dissent, there is also evidently support for the unionization of contract work at Egg Films within the broader IATSE 849 membership. It is also important to consider that, like in many union drives, supporters may not want to reveal their support for fear of retribution. It is much easier to support your employer than to openly adopt a position that could, in the short term, negatively impact your livelihood.

Why unionize?

What too few people understand, even among any union membership, is that unions have an inherent imperative to unionize non-union workplaces. That’s what unions do! That’s what they HAVE TO do!

To not do so would jeopardize gains won for their membership in the broader industry in which they have jurisdiction and therefore signify a failure to properly represent the interests of their members.

A union’s leverage to make gains in a workplace correlates with the union density within the industry in which it’s trying to negotiate a contract. That means the higher the proportion of unionization in the industry, the better a union’s ability to make a case for improved standards in the industry. The reverse is also true. If a union becomes an island in an industry where non-union work is the norm, then the lowered standards around it will weigh down its ability to lift up conditions for all workers in the industry. In fact, the presence of any lowered conditions in the industry makes it harder to have higher standards respected anywhere else in the industry. Employers will relish the opportunity to point their finger at examples where lower standards are offered.

The modus operandi of unions is unification and collectivism – hence the need to grow the number of people unionized together in order to increase their collective power in the interest of all included. Essentially, this is why unions are called unions.

Organizing Egg Films is both a response to workers who have worked at Egg Films and expressed the desire to unionize (why would IATSE even try if there wasn’t indication that there would be support to even win a vote in the first place?), and is also a matter of self-preservation in the interest of their entire membership.

This is even to the benefit of non-union workers. The high wages in non-union work at Egg Films and elsewhere in the province are a result of the high union density within the industry. Even if you’re a not a union member, the strength of IATSE and its hard fought attempts to organize job sites to improve wages and working conditions in the past are the reason wages and conditions are were they are now.

Moreover, with the reduction of union work available in the feature film and TV sector as a result of the gutting of the Film Tax Credit, the proportion of non-union work becomes higher. Although the Tax Credit fiasco could not have been foreseen by IATSE, the move to unionize commercial work becomes even more important and signifies prudent and just direction on their part as a matter of interest for their members. If there is to be fewer film jobs in the province, then it becomes all the more crucial that commercial and other media work offers proper wages, benefits and union protection. IATSE members (like ACTRA members) need to be fighting for good film jobs that provide fair and stable living standards, not just any film jobs. Otherwise, we’re all just fighting for crumbs.

Moving forward

There’s certainly work to be done to improve labour law, and unions have a long way to go to improve participation and education within their own ranks, but ultimately IATSE 849 won the union certification legally, clearly, and squarely.

Egg Films needs to pull their heads out of the sand, call back the workers by ending the lockout, and get back to the negotiating table to craft a fair agreement that will work for both the employer and the workers who are covered under the union agreement. Negotiation is very much a “back and forth, give and take” process, but thousands and thousands of employers across Canada have found ways to sit down and negotiate something which both parties can live with – and be happy with.

The Egg Films PR campaign is only intended to divert attention away from the fact the Egg Films has no legal grounds to contest the union certification and is illegally refusing to negotiate. It is also intended to divert attention away form the fact that Egg Films has been waging a legal fight to prevent any contract workers they employ from having a right to vote to form a union. Moreover, the campaign serves as a surreptitious drive to paint unions in a bad light in order to further drive away public support for unions in general, making it easier for Egg Films’ pals at Chardin and the CFIB to bust needed union drives in the private sector.

Pretending that the certification isn’t valid is petty and harmful. It is also dragging friends and colleagues in an industry already suffering from high stress into a prolonged unnecessary strife. This happened way before the elimination of the Film Tax Credit. It is Egg Films who is dragging this on through this difficult period in the industry and refusing to give people work.

As I’ve said before, if employers are the motors of our economy like they claim to be, then they have a social obligation to foster an economy that will provide safe, secure and livable working conditions for all those who participate in the economy.

#NSFilmJobs isn’t good enough if people can’t make a stable living off of them. Egg Films needs to end the lock out, get back to the negotiating table and help us all lift standards in our industry.

Finally, I hope IATSE members will commit themselves to being involved in their union because it’s going to need to be as strong as ever going forward in this province. It was union members – more than anyone else by a long shot – who filled the streets to protest the elimination of the Film Tax Credit, and we all need to remember that.


*While I can’t prove that Egg Films has employed Chardin to run their PR campaign, one can make a pretty safe assumption. Michael Kydd, owner of Chardin, is a regular contributor to comment threads on social media posts regarding this labour dispute. More revealing still is that the Egg Films Tedx style event, which was originally planned all the way back in April (despite them publicly stating it was a last minute initiative to finally get the “truth” out in July) listed Chardin Consulting as the organizer on the original event page.


Note: Articles published by Solidarity Halifax members do not necessarily reflect positions held by the organization.

Jul 172015

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On Wednesday, students, workers, and low-income earners came together to fight for a $15 minimum wage. The Fair Wage Coaliton, made up of Solidarity Halifax, ACORN Nova Scotia, the Halifax-Dartmouth District Labor Council, the Canadian Federation of Students, and the Dalhousie Student Union held an information picket early Wednesday morning outside the McDonalds on Quinpool Road.

Minimum wage in Nova Scotia rose by 20 cents on April 1st but this small increase still leaves many people scrambling to make ends meet amidst rising rent prices and insurmountable student debt.

Want to join the fight? Check out the Nova Scotia Needs a Raise Facebook page or this fact sheet.

Jul 142015

This article by Solidarity Halifax Member Brian Crouse and Alexandra Killham originally appeared in the July 9, 2015 edition of The Coast. 

Last week, the Coast published an article by Michael Wood, entitled “Why I celebrate Canada Day with all my heart.” This article was in response to Killa Atencio’s article, “Why I choose not to celebrate Canada Day.”

The Coast offers Halifax great event listings, horoscopes and sometimes supports important investigative journalism. But there is power in having access to thousands of readers and the ability to lift voices. Publishing Atencio’s article opened up space for people to share anger, to question Canada Day and to challenge the uncritical celebration of Canada’s history. It also showed that the Coast is a forum in which this is possible. The choice to follow up with Wood’s article, as a response, closes that space off just as quickly.

The Coast presented two articles implying that both perspectives were equal and valid. Just because there are “two sides to a story,” however, doesn’t mean that both sides need to be published. Or that they are even based in truth. An indigenous woman wrote an article challenging common perceptions of Canada Day and nationalism. She educated readers on some of the reasons that this national holiday conceals colonial violence and sidelines indigenous experience. This truth is not one that is taught in history books, featured on a Canada Day parade float, or shown on TV on July 1.

Within the dominant stories of Canada Day, Wood’s perspective is one that we hear too often. It is constantly validated and upheld. It was really important for The Coast to publish Atencio’s article—but following it with Wood’s perspective works to silence indigenous experience.

This is not an issue of freedom of speech. There is a difference between “freedom of speech” and choosing to publish an article. The right to freedom of speech simply means that you can’t be arrested for your opinions. Just because Woods has an opinion (albeit one clouded with privilege) doesn’t mean that the Coast needed to publish it.

Journalism isn’t neutral. The choices of which authors to publish, which stories to feature and which voices are heard are always political choices. Choosing to show “two sides of a story” ignores the fact that one side often has more power.

What does Canada Day look like when we actively acknowledge and honour that Canada isn’t something that everyone celebrates? Colonialism is an ongoing process, and for many, this is a lived experience, not a lesson in a history book. By publishing articles that tell these stories, we create space for conversations that challenge false and simplistic ideas of Canada. Like all media sources, the Coast’s choices in which articles to publish give it a role in the ongoing struggle for justice – whether they acknowledge it or not.


Note: Articles published by Solidarity Halifax members do not necessarily reflect positions held by the organization.