This decision concerns an Application filed by the VFO pursuant to sections 48 and 139 of the Labour Relations Code (the “Code”). In its Application, the VFO was seeking a declaration that its collective agreement with the VMA is in full force and effect. The VMA is the Vancouver Local of the CFM and AFM. The VMA, CFM and AFM take the position that the Collective Agreement is not a Collective Agreement as defined by the Code. The Former Executives support the VFO in this Application.
The central issue in this proceeding was whether the VFO had authority to enter into a collective agreement despite the AFM’s requirement that all collective agreements be approved by its president.
In or around 2011, discussions began between the AFM, the AFM’s International Executive Board (the “IEB”), the CFM, executives of the VMA and the VFO to potentially enter into a collective agreement. In February 2012, VFO sent an e-mail to the CFM stating that in order to be successful in their business endeavors, they required a clause allowing a prepayment/buyout to the musicians for additional use of their music (a term not allowed by the AFM). In response, the CFM sent an e-mail to the VFO stating that there was “no point in having discussions on the buyout restrictions without the IEB being directly involved.” Having previously failed to successfully negotiate a buyout clause with the IEB, unbeknown to the IEB, the VFO contacted the VMA directly to negotiate a collective agreement. Subsequently, the VFO and VMA entered into collective bargaining. After many meetings between the VFO and VMA, the two sides negotiated a collective agreement which included a prepayment/buyout clause. The Collective Agreement was ratified by the membership of the VMA.
In May 2013, the AFM became aware of the Collective Agreement and buyout/prepayment provision and responded by inter alia refusing to recognize the Collective Agreement and placing the VMA under trusteeship. Additionally, the AFM Musician’s Pension Fund refused to accept pension contributions from the VFO on behalf of musicians worked under that Collective Agreement. The AFM’s position is that the Collective Agreement is not a collective agreement as it was entered into contrary to the AFM’s bylaws which require that AFM’s Locals get written approval from the AFM President before entering into any agreement.
Analysis and Decision
The Board first considered the constitution and by-laws of the AFM and concluded that the VMA did not have actual authority to bind the AFM to a Collective Agreement.
The Board then considered whether it was possible for the VFO to conclude that the VMA had the apparent authority to sign the Collective Agreement. The Board considered the events surrounding the bargaining and specifically noted that based on the various e-mail exchanges and failed negotiations with the IEB, the VFO knew that VMA was not allowed to agree to a prepayment/buyout clause. Therefore, the Board held that absent the VMA demonstrating some change in its authority to the VFO, the VFO knew that the VMA did not have authority to enter into the collective agreement and as a result the VFO’s Application was dismissed.