Date: April 3, 2014
Egg Films (the “Employer”) produces television commercials and promotional films for corporate clients. The Nova Scotia Labour Board (the “Board”) certified The International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 849 (the “Union”) as the bargaining agent for the technicians that work on the Employer’s projects. In doing so, the Board found that the technicians were “employees” under the Trade Union Act.
The Employer appealed the decision of the Board and on appeal the trial judge found that the Board’s decisions was reasonable and upheld the certification. The Employer then appealed to the Nova Scotia Court of Appeal (the “Court of Appeal”). In order for the Board’s decision to be upheld, the Court of Appeal had to determine that the Board’s decision was reasonable.
The Employer made two main arguments: 1) that the technicians were not employees and 2) that the bargaining unit was not appropriate. The Court of Appeal held that the Board’s decision that the technicians were employees was reasonable. In so doing, the Court held that even though the technicians were hired for short projects, the technicians were sufficiently controlled by and dependent on the Employer.
Additionally, the Court of Appeal affirmed the Board’s finding that the Employer repeatedly hired technicians for its projects and therefore there would be a durable temporal connection with the Union. The Court of Appeal also determined that it was appropriate for the Board to use the “snap shot” rule – those employed at the time of certification application were eligible to vote instead of requiring a worker to be employed at both the time of certification application and date of vote – when deciding who could vote in the certification vote. The Court of Appeal noted that when project specific work is the norm, as in the film industry, the “snap shot” approach is preferable because requiring workers to be employed on two dates would stifle the workers’ access to collective bargaining.
Finally, the Court of Appeal upheld the Board’s decision that the technician’s unit was appropriate because the technicians had a community of interest. The community of interest is apparent in the performance of occasional work that creates similar concerns and issues. Also, the Court of Appeal supported the Board’s finding that just because a unit shares a skill does not make it a craft unit. The Court noted that the technicians all have different specialties that are distinguishable.
September 25, 2014:
Egg’s leave to appeal to the SCC denied with costs.