Date of Decision: June 19, 2014
British Columbia Labour Relations Board
In 2012, the Vancouver Film Orchestra Inc. (the “VFO”) and the Vancouver Musician’s Association Local 145, Canadian Federation of Musicians (the “VMA”) concluded a collective agreement (the “Agreement”). In the spring of 2013, the American Federation of Musicians (the “AFM”), the VMA’s international parent, learned of the Agreement. The AFM was troubled that the Agreement contained an article that provided that fees paid to the musicians included “total prepayments for all additional uses in perpetuity” – referred to as a “buyout provision”.
The AFM determined that the buyout provision did not comply with the VMA or the AFM Bylaws. The AFM responded to the buyout provision by terminating the VMA’s executive board, placing the VMA under trusteeship, and taking the position that the Agreement was invalid. The AFM successfully argued before the British Columbia Labour Relations Board (the “Board”) that the VMA did not have the actual or apparent authority to conclude the Agreement without the AFM approval.
After the Board came to this conclusion, the VFO applied for a declaration that the VMA was not a trade union as defined by the British Columbia Labour Code (the “Code”) and as a result the VMA’s certification with the VFO should be cancelled. The VFO argued that the definition of “trade union” under the Code requires that the VMA have the power to make key bargaining decisions. Since the Board held that the VMA did not have the power to conclude the collective agreement without approval from the AFM, the VFO argued that the VMA did not meet the Code requirements.
The AFM argued that the AFM and the VMA had a normal relationship of an international union and its national or local organizations. Additionally, chartered locals are never entirely independent and the AFM’s leadership complied with the Code. The AFM suggested that the AFM’s restriction on the VMA’s bargaining power was a peripheral restriction that applied only to the buy-out provision.
The Board determined that the issue to decide was whether the VMA’s restricted authority impacted the VMA’s ability to meet the definition of a trade union under the Code. The Board concluded that the AFM’s restriction on the VMA’s bargaining power was not peripheral but a real restriction on the VMA’s ability to collectively bargain. Therefore, the VMA did not meet the definition of a trade union under the code.
In making this decision, the Board relied on the fact that the AFM vetoed a key collective bargaining decision and that the VMA did not have the power to conclude collective agreements locally. Additionally, the many measures that the AFM imposed on the VMA weighed in favour of the Board’s decision. Finally, the Board noted that in the original decision the AFM acknowledged that the VMA may not meet the definition of a trade union under the Code because of the Board’s acceptance of the AFM’s overriding power over collective bargaining.