- May 26, 2021
- Certifications/Decertifications
This decision concerned an Application for Certification filed on July 26, 2010 seeking certification of a bargaining unit for all stagehands employed by the AEG Live Canada Ltd. (“AEG”), in the Province of Manitoba excluding members of the road crew travelling regularly with the production and employees excluded by Labour Relations Act. In its response AEG claimed that it “did not employ any stagehands on July 26, 2010 and has never employed any stagehands in the Province of Manitoba”.
AEG is in the business of producing and promoting live concerts around the world. On July 26, and 27, 2010, AEG was promoting two Neil Young concerts presented at the Centennial Concert Hall (“CCH”).
AEG’s response to the Application was two-fold. Firstly they argued that the stagehands were independent contractors and not employees as the stagehands dispatched to work at the Neil young concerts only worked for a very brief period after which time they were available to be dispatched to other work, they are not dependent upon AEG for their livelihoods and because the stagehands can and do refuse calls to particular jobs. The Board held that the stagehands were employees and not independent contractors. In so doing the Board considered the following factors:
- The level of control over the individuals activities;
- The provision by the individual of his or her own equipment;
- The hiring by the individual of his or her own helpers;
- The degree of financial risk taken by the individual;
- The individual’s degree of responsibility for investment and management;
- The individual’s opportunity for profit or risk of loss;
- Other factors.
In applying those factors to the facts at bar, the Board held that the stagehands do not perform the work on their own account and therefore the stagehands are employees.
Secondly, AEG argued that if the stagehands were employees, that AEG was not the employer as they argue they did not exercise control over the stage hands. The Board held that there is no “stock determination” with respect to who employs stagehands in the live entertainment industry. In determining whether AEG was the Employer of the stagehands, the Board applied seven factors:
- The party exercising direction and control over the employees performing the work;
- The party bearing the burden of remuneration;
- The party imposing the discipline;
- The party hiring the employees;
- The party with the authority to dismiss the employees;
- The party who is perceived to be the employer by the employees;
- The existence of an intention to create the relationship of employer and employees.
In applying these factors, the Board held that despite being obliged to have a compliment of stagehands as per its agreement with Neil Young, the stagehands did not communicate with AEG and therefore, AEG did not exercise direction or control of the stagehands. Although the Board did not make a determination as to who was responsible for remuneration of the stagehands, the Board held that it was not AEG. With respect to discipline the Board held that AEG does not discipline stagehands, AEG “is a conduit for communicating concerns expressed to it by the artist”. Therefore, the Board held that AEG has “no meaningful role in disciplining any of the stagehands proposed in the bargaining unit”. With respect to hiring, the Board considered a number of facts and concluded that there were no negotiations involving AEG with respect to the stagehands’ terms and conditions of employment. The Board found that there was no evidence that AEG had the authority to dismiss employees in the disciplinary sense. Finally the Board held that none of the contracts demonstrated an intention for AEG to create an employment relationship with the stagehands.
As a result of the above considerations, the Board concluded that AEG was not the employer of the stagehands and dismissed the Application for Certification. Notably, the Board did not make a finding as to who was the employer of the stagehands.