John Krasinski – not a dance move appreciated by unionized Canadian Actors
John Krasinski – not a dance move appreciated by unionized Canadian Actors
August 14, 2024
Photo credit: CBC
This Rogers ad featuring John Krasinski has been a recent trigger in a long simmering Canadian labour dispute.
Labour and Industrial Relations in some industries, like the entertainment industry, are simply unique and can appear to be complex to those outside of those fields who may be used to more “normal” terms of engagement. In the entertainment field, performers typically only have fleeting employment relationships with their employers. They may be engaged for a single show, a series of performances or for commercial work. In commercial work actors represented by ACTRA the Alliance of Canadian Cinema, Television and Radio Artists are employed by companies who are members of either the Institute of Communication Agencies (ICA), and/or companies who are members of the Association of Canadian Advertisers (ACA). The collective agreement is referred to as the National Commercial Agreement (NCA).
The NCA collective agreement has been in place since the early sixties and has been subject to renewal bargaining every few years. In 2021 talks broke down between ACTRA and ICA over an ICA proposal that its members be allowed to opt in and out of the NCA at their discretion. This implicitly threatens the integrity of the bargaining unit and was rejected by the union for obvious reasons. Subsequently, in March 2022, ACTRA members, approved strike action to support the union's position at the bargaining table. In response, on April 26, 2022, the ICA essentially locked-out ACTRA performers and have relied on non-union performers since.
The ICA has contended that the Agreement had “expired” and was not valid. The matter is now before the Ontario Labour Relations Board who have to adjudicate the following claims by the ICA that:
ACTRA is not a trade union within the meaning of the Labour Relations Act;
the NCA is not a collective agreement within the meaning of the Labour Relations Act;
ACTRA members are not employees or dependent contractors within the meaning of the Labour Relations Act;
the Responding Parties are not employers within the meaning of the Labour Re;lations Act; and
the ICA is not an employer's association
Perhaps our minds work too simply. In the NCA collective agreement, under Section 1 - Application and Recognition- Subsections 103 and 104 read:
103 - Parties to Agreement. The parties to this Agreement are ACTRA, the Institute of Communication Agencies (ICA), and the Association of Canadian Advertisers (ACA).
104 - Recognition. The ICA and ACA recognize that ACTRA is a trade union, as has been determined by the Ontario Labour Relations Board, and that it is duly authorized to represent each and all Performers working under this Agreement. The Engagers also recognize ACTRA as a trade union representing Performers with respect to all minimum rates and working conditions provided for in this Agreement. ACTRA recognizes the ICA/ACA as the sole and exclusive bargaining agent for each and all Engagers who sign an Authorization for the ICA to negotiate this national Agreement on their behalf.
It seems pretty clear that the NCA is a collective agreement and therefore the rules with respect to labour relations ought to apply to these parties. It also seems clear that the ICA is a bargaining agent. Nothing has emerged yet that indicates the employer’s (ICA) arguments have any merits but this is an interesting case that is worth paying attention to.
In disputes where a group of employers has essentially asserted that they are not covered by a union and have no obligations to organized labour such as we have here, it is of paramount importance that the employers be right. If they are wrong in their stand then they will face significantly difficult relations with labour in the future. However, that sort of long-term relationship focused thinking does not seem to be part of these employers’ concerns. While it is appropriate to reserve judgment on the case until the OLRB has ruled, it seems apparent on the surface the ICA case is frivolous and vexatious.
In the distant past there were arguments raised that the collective agreement, being a form of contract, ceased to exist upon expiry. In theory this meant that past the expiry date the employer was no longer bound to the agreement and could deviate from its provisions as it saw fit. This potentially led to practices that were unfair and designed to frustrate unions and their members. Hence, it has become a labour relations maxim that if the collective agreement is not renewed prior to the expiry date it continues in effect (until replaced or until the union loses bargaining rights).
The ICA seems to be arguing that despite its own provisions that acknowledge the union and the agreement in a form consistent with collective agreements, somehow the NCA is a different animal and can be treated as a simple commercial contract exempt from labour relations statutes and rules. Our expectation is that the OLRB will apply basic tests to determine if the NCA is a collective agreement and whether or not ACTRA is a trade union within the meaning of the Act. As the saying goes: “if it looks like a duck. Walks like a duck and quacks like a duck then it probably is a duck.”
The problem with arguments like the one raised by the ICA is that they interfere with the maturation of the overall culture of labour relations in Ontario and across Canada. The labour movement is a vital component of our democracy and while it is necessary and desirable to have Labour Boards charged with the responsibility of establishing boundaries and definitions for the practice of labour relations, and while disputes can arise, some forms of litigation strain the system. Specifically, cases like this which question the legitimacy of a union despite black and white collective agreement language and over sixty years of existence, are a step backwards in time.
Think about the consequences of this case…. in the unlikely event that somehow the ICA “wins”. No doubt this simply will trigger ACTRA into launching an organizing campaign which will highlight and stir up antagonism amongst all parties; ACTRA and its members and the ICA members
Commercial work, which includes advertising, is truly an art. A lousy ad is money wasted. A good ad is a sound investment that yields great returns in terms of increased sales and interest in the product. However, the difference between a good ad and a bad ad is often due to the quality of the people working on the ad. By shunning ACTRA, the ICA is denying itself access to a large pool of talented people, at least in the short-run.
In the long-run it may be creating a culture that is seen as unfriendly to talent.
This issue caught our eye recently because of objections raised by ACTRA over the use of non-union talent in a Rogers’ ad that features U.S. star John Krasinski letting loose to a Taylor Swift song in a boat on Lake Simcoe. The agency that created that ad is a member of ICA and is participating in the lock-out. A CBC news article[1] essentially outlines how employer efforts in the commercial advertising industry has effectively led to an existential crisis for ACTRA. As such, one should expect the case before the OLRB to be part of a larger battle between the parties that likely will threaten the continued viability of Vancouver and Toronto as production centres for the industry. It therefore behooves people in the industry to find a path to a solution different than through prolonged litigation. It is reality that from time to time an industry needs a reset and to find ways to innovate and stay competitive. In this case it seems critical to the Canadian performers in the film and advertising industries and their employers to negotiate their way to updated terms and conditions. Otherwise we may all lose.
[1] https://www.cbc.ca/news/entertainment/krasinski-rogers-ad-union-dispute-1.7288743
Link to video of CBC report: