After 17 months and another failed mediation, ICA and ACTRA as far apart as ever

As the contentious labour dispute between ACTRA and the ICA approaches the 17-month mark, there was a new development this week. But it was not a good one.

Both sides confirmed that a two month-long mediation process to try and sign a new National Commercial Agreement had broken down. (Read all of our coverage here, including our story that outlined the parameters of the dispute in April, 2022.)

“[I]t will not be productive to continue the mediation at this time,” said mediator Eli Gedalof. ”I have concluded that the parties are simply too far apart on issues that are fundamental to each, and that the conditions are not ripe for compromise at this time.”

While Gedalof declined to talk with The Message, the chasm between the two sides that appeared in April 2022, is as obvious as ever in the sharply worded releases coming from both sides now that a media blackout has been lifted.

The ICA says it has offered an immediate 8% pay hike and an increase in digital fees, for example. ACTRA says the ICA would “slash performer rates” by 50 to 60%. While ACTRA maintains its members are being locked out by Canadian ad agencies represented by the ICA, the ICA maintains ACTRA members are on strike.

The ICA published some of the details of its latest proposal, and ACTRA presented that proposal to its members late Thursday. Speaking with The Message after that meeting, Marie Kelly, ACTRA’s national executive director and lead negotiator, said the union remains committed to fight against the ICA, which it accuses of trying to break the union.

“Our members were really clear in the meeting that they are resolved to stand together and to make sure that they get a fair deal out of this,” she said. “They’re not interested in the kind of gutting and slashing of their terms and conditions, and the rates that the ICA is proposing.”

To ask performers to cut their rates—which will have a very real and meaningful impact on them—when those rates represent such a small part of the overall budget, including media buy, agency fees and production costs, is “just unbelievable,” she said.

“If you look at the data, out of all the money spent on an advertisement, less than half a cent [on the dollar] is money that goes to the performer,” she said.

As has been the case since April 2022, a core issue at the heart of the dispute is the ICA’s demand that it have more flexibility to opt out of using ACTRA talent for some work.

In the past, all NCA signatories had exclusive access to ACTRA talent—typically regarded to be of superior quality, but also more expensive than non-union talent—but had to use that talent for all projects.

However, the ICA contends that for the past 15 years, a loophole in the agreement enabled non-signatory agencies to access ACTRA talent through third-party staffing / payroll companies (originally introduced so international advertisers could produce work in Canada with ACTRA talent).

This meant NCA signatories were at a disadvantage because they could only use the more expensive ACTRA talent for all work, while non-signatory agencies could use ACTRA talent when they want, and cheaper non-ACTRA talent in other cases.

ACTRA says the magnitude of this problem has been overstated, and is being used as an excuse by the ICA to break the union—being able to choose when to work with union workers undermines one of the most basic principles of organized labour.

But the ICA and agencies say that ACTRA has effectively done this already by allowing its members to work with non-signatory agencies, and claiming that because that loophole was there, no new agency has signed the old NCA in more than 15 years.

The ICA is calling on ACTRA to both close down that loophole so that only NCA signatories can work with ACTRA talent, and revise some of the remuneration structures.

“Simply closing the back door would push clients to move their business to non-union shops far quicker, because the quality in the non union sector exists to such a high proportion now,” said Scott Knox, president and CEO of the ICA. “We told them time and time again for the past 15 years, ‘this has got to be corrected,’ and they’ve sort of ignored it. And now we’re in a position where just closing the door—bringing exclusivity back to the agreement—is not enough. We need to be able to compete with non union. And we put various proposals on the table to allow us to do that on certain types of production.”

For example, the ICA is proposing a new pilot project for “low budget” digital and TV work—any production under $300,000 (estimated to be 20 to 25% of all commercial production). “Talent for this level of budget is almost always non-union,” said the ICA its proposal. “The opportunity will be to bring this work to ACTRA members, while at the same time allowing signatory agencies to compete with non-signatory agencies and persuade those agencies to become signatories.”

For one-year use, a principal performer in a TV ad would get $6,000 (after the ICA’s proposed 8% increase). However, for TV ads under the $300,000 budget, a principal performer would get $4,500.

With mediation failed, both sides remain in much the same position they were in 17 months ago.

Gauging the real impact of the dispute depends on who you ask: the ICA and agencies (who are undeniably under pressure from clients to cut costs wherever possible) contend that while they want to work with ACTRA talent, they have been getting by without it.

But some in production and casting say it hasn’t been that simple, and that the work has suffered. The Message has talked with actors who say they have been devastated by the lockout / strike, and while ACTRA knows that some of its members are feeling the pain of lost work, they are, on the whole, resolute.

“There are obviously members of ACTRA who’ve lost significant income and are hurting,” said Kelly. “But what I am saying to you is that they also know their value, and they are not prepared to take peanuts to go to work and perform on behalf of brands who are making record profits, and ad agencies who are doing fine economically, in order to end this lockout.”

With no formal talks planned, it’s hard to see any resolution in the short term, unless one side breaks dramatically from the rigid position they’ve staked out.

The only other key variable is the ongoing bad faith bargaining complaint brought by ACTRA to the Ontario Labour Relations Board.

ICA successfully argued that before considering that complaint, the OLRB first had to rule if the NCA is actually a collective agreement or a commercial agreement. If it’s the former, then it could go on to consider the bad faith complaint. But if it’s a commercial agreement, the ICA believes it would mean the NCA is not binding. But it’s expected the OLRB will not make that ruling until well into 2024.

David Brown