As expected, the complicated and rancorous labour dispute between some of Canada’s top ad agencies and the union representing Canadian commercial acting talent, is now turning into a similarly complicated and rancorous legal fight.
Last week, ACTRA filed 14 grievances against ad agencies for attempting to use non-union acting talent. And on Tuesday, the union filed a complaint with the Ontario Labour Relations Board accusing the Institute of Canadian Agencies and nine Canadian agencies of bargaining in bad faith while attempting to negotiate a new National Commercial Agreement for the industry.
In a release, ACTRA said the ICA “committed bad faith bargaining by insisting ACTRA reduce the scope of its bargaining rights. The ICA started and ended the year long negotiations insisting it determine when and if it would comply with the NCA and when it would choose not to.”
“The strategy seemed more about breaking the union than it was about working with our professional performers to create high-quality commercials for their advertising partners,” said Marie Kelly, ACTRA’s national executive director and lead negotiator.
For much of the past year, the ICA and ACTRA, along with the Association of Canadian Advertisers, had been in negotiations for a new NCA—the agreement setting out all key terms and provisions for the use of ACTRA performers in Canadian commercial production.
But, as reported by The Message late last month, a critical sticking point in negotiations was the ICA’s desire for signatory agencies to be able to opt in and out of the agreement. In other words, ICA wanted advertising signatory agencies to be able to work with ACTRA talent on some projects, and non-union talent on others.
While ACTRA said that would violate one of the core principles of a collective agreement, the ICA said that ACTRA had already allowed non-signatory agencies to work this way through third-party signatory businesses like payment services.
In 2007, the ICA and ACTRA agreed to allow third-party companies to facilitate international work produced in Canada using ACTRA talent, but for agencies who had not signed the NCA. The ICA supported that provision in 2007, said ICA president and CEO Scott Knox. But since 2007, ACTRA has increasingly allowed Canadian work by non-signatory agencies to book ACTRA talent through those third-party players.
According to the ICA, that created an unfair market for signatory agencies that—because they were bound by the NCA—could only use ACTRA talent, while non-signatory agencies had the advantage of using ACTRA talent when they wanted. “There were unfair terms—there were better terms—available to businesses by being a non-signatory, and ACTRA created that playing field,” said Knox.
When talks fell apart over the issue, and with the April 26 expiration for the old agreement approaching, the union signed a new one-year deal with just the ACA, catching the ICA by surprise.
The result was a highly unusual situation in which one side—ACTRA and the ACA—say there is a new binding agreement in place for the industry including all signatories to the previous agreement, and the other side, the ICA, say the old agreement expired on April 26 and there is no commercial agreement currently in place.
The disagreement left many in the industry unsure about how to move forward as both sides dug in. Agencies that were signatories to the previous agreement, believed they were free to start working with non-union talent, but ACTRA insists that’s not the case.
Each now accuses the other of acting in bad faith, and though they both are dealing with the same set of facts, they have opposite interpretations of what they mean.
ACTRA for example, says the ICA has “unlawfully locked out ACTRA members from commercial work with their agencies.”
“If the ICA agencies want to work with ACTRA talent, we are pleased to work with them as signatory engagers to the current NCA and its renewal,” said Kelly.
The ICA, however, says advertising agencies that were signatories to the previous agreement, but don’t recognize the new agreement, have been trying to work with ACTRA talent. “ACTRA has prevented that because they are preventing former signatory agencies from accessing ACTRA talent through third-party payroll companies,” said Knox.
It is ACTRA that is acting in bad faith, he said. “That is them calling a strike—withdrawing member performance—without actually calling it a strike.”
While the ICA says having the option to opt out would level the playing field with non-signatory agencies, ACTRA says the ICA was making demands that “would have brought inequity and unfairness to the industry.”
“We were shocked and opposed to the ICA’s proposal to create favourable terms in our collective agreement for 16 ICA ad agencies,” said Kelly. “We could not agree to assist the ICA agencies in outbidding other ad agency partners; ad agencies that ACTRA has worked with for decades.”
The ICA’s claim about the use of third parties is also a “red herring,” she said.
“We believe the real goal of the ICA was to break the union. ACTRA provided a comprehensive proposal to address the issues raised by the ICA about the use of third parties. The ICA failed to provide a response to our proposal, but rather walked away from the bargaining table.”
Speaking with The Message just after receiving the ACTRA complaint, Knox said the ICA is working with its lawyers and those of the named agencies to determine their response to the OLRB complaint.
But in terms of the grievances, he said the ICA position is clear: “There is no NCA in place for former signatory agencies, and therefore there is no grievance procedure in place either. Therefore the union has no legal authority to seek any remedy through a methodology that expired on the 26th of April.”
The nine agencies named in the ACTRA complaint are Cossette, John St., Juniper Park\TBWA, Leo Burnett, McCann, Ogilvy & Mather, Sid Lee, Taxi and Wunderman Thompson.
In an email to The Message, Arthur Fleischmann, country manager for WPP in Canada, said: “WPP agencies support the ICA’s efforts to create a favourable work environment for our clients, our people, the production industry in Canada and ACTRA members.
“We believe we are within our rights to engage whoever we wish to engage,” he said. “Ironically, ACTRA will not allow us to engage ACTRA members, either directly or through third-party payroll companies, which seems to run counter to supporting their members, as it deprives them of work.”