Bruce Laughton, Q.C. responds to VFXLaw posting on BC Employment Standards Act interpretations

Posted: January 17, 2011 in Uncategorized

Bruce Laughton, Q.C.

I am a lawyer practising in Vancouver in the area of labour relations. I have been in practice for 31 years and represent trade unions in various industries including the film industry. A link to my biography.

I have reviewed your posting dated December 13, 2010 which purports to interpret provisions of the Employment Standards Act and the Employment Standards Regulation.

In my opinion the cornerstone of your views is without foundation. In particular you assert that VFX artists fall within the definition of “high technology professional” found in section 37.8 of the Regulation. You then assert that the classifications contained in the “North American Industry Classification System” (NAICS) have been incorporated into the Regulation or govern the interpretation of that Regulation. That is not the case. The only definition applicable to high technology professionals is the one found in the Regulation.

In my opinion a proper reading of the definition results in a conclusion that VFX artists are not high technology professionals. The proper approach to statutory interpretation of such provisions was enunciated by the Supreme Court of Canada in 1998:

“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” (Rizzo & Rizzo Shoes Ltd. [1998] 1 S.C.R. 27 at page 87)
When the definitions are read in their entirety, recognizing that they are an exception to benefit conferring legislation, they cannot be seen as reasonably applying to individuals performing the work of VFX artists. Rather, they apply to individuals who apply specialized knowledge to the production or development of computer technologies or scientific or technical products. Examples of such individuals would be computer systems analysts, computer programmers, electronic engineers or software developers.

The definitions do not apply to individuals who use computer technology to produce a product such as visual effects.

Accordingly, the provisions of Part 4 and 5 of the Employment Standards Act which provide for payment of overtime and statutory holidays are applicable. Employees are entitled to overtime at 1.5 times the rate of pay after 8 hours or double time after 12 hours.

If VFX artists wish to have the ability to negotiate their own terms and conditions of employment outside of the Employment Standards Act the only avenue available to them is to be represented by a trade union covered by a collective agreement. Section 3 of the Employment Standards Act provides that where collective agreements contain provisions respecting hours or work or overtime the provisions of the Act do not apply.

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Comments
  1. Dee says:

    Yes, they do apply. Your definition of a vfx artist is fundamentally flawed. VFX artists also program. We are programmers. If you consider a computer programmer to be covered under the laws, then you must also consider a vfx artist to be covered under the laws. At Sony Pictures Imageworks, Rhythm & Hues, and Dreamworks, all vfx artists use a custom operating system made by vfx artists and programmers or they use a customized version of linux which we constantly update and change for our needs. Also, each show uses tools scripted or programmed specifically for that show by each artist. Yes, we use the technology…but we also create it.

    • vfxinsider says:

      VFX artists also program? I can has cheezburger?

    • .. says:

      I’m a paint/roto artist.
      In NO way do I program. At all. Ever.

    • jessnbrown says:

      I have never programmed anything while providing services as a VFX artist. You’re welcome to classify yourself as a high technology professional, but I am not counted in that category.

    • Brandon says:

      I just washed my car. I’m not a car washer. I cooked breakfast, but I’m not a short order cook. My primary function at work is not programming. I am therefore not a programmer. By your definition, an accountant that writes a macro for excel to make their job easier is a programmer and shouldn’t be payed overtime.

      • iatse891vfx says:

        I believe you need to reread again, as it states: The definitions do not apply to individuals who use computer technology to produce a product such as visual effects. I am not a lawyer and do not right laws that’s why we had a lawyer look at the way the clause was being interpreted to exempt vfx artists from properly being paid overtime which he disagrees with. In fact the same applies to an accountant just because they use technology to do their job does not mean they are a high tech professional.

      • Brandon says:

        I was saying by Dee’s definition anyone who ever thought about code in any way is a high tech professional and that’s not accurate. The reply nesting isn’t working very weall

  2. fixed bid says:

    Hey Dee,

    You cant be serious. I think you are referring to the R&D department.

    • Cyrus says:

      As a TD who has worked in various vfx houses I beg to differ. We TDs tend to wear different hats during production. From R&D, tools & shader-writing (read: programming) to simulation, FX, lighting and compositing. Depending on the studio/show, we might get titles like R&D Artist, Lighting/FX TD, Shot finaler, Software Developer or even VFX Artist. Instead of working in some R&D or software department, we are usually show hires and therefore fall in the same working category as other artists.

      • Anon says:

        You are missing a key point. The “high tech” act states that all the workers must fit into this category. All or nothing. If you code. but i don’t that doesn’t mean we all work as “High tech” workers. that means that the work place is not a high tech work place and none of us are part of the exclusion.

  3. John Sinclair says:

    Top VFX are “distinctive creative dynamic talents” not “systematic crafts and skills” more individually defined as with any artist musical or theatrical. You need agents not unions and possibly incorporation and partnerships. You’re all a portfolio sell like a PD or AD. You got “the look” or not. A top VFX could (if an audience following and market share proven, as can now be done and is done by Google requested or not) ask as much as some top actors. It is about what brings profit and not much else. YouTube.com is the New York Stock exchange for all artists – just another portfolio sell.

    Young VFX with an agent/artist mindset and culture not one of simple digital set to costume construction perception would simply suffer or enjoy supply/demand factors they “individually can control” – that all unions “restrict” in all small departments by the simple math and “Tyranny of Democracy” or grand compromise factor. Now add any small drop of corruption in a corporation or union and even getting a sleazy pushy agent maybe the smarter choice for a VFX marketing strategy to raise service supply prices. This like some AD’s and PD’s know with multiple union permits and memberships and also of course suffering limited labour law protection as such and not full civil or criminal recourse. However as we speak the film posters are being printed off shore in “emerging markets” and everyone needing tech slaves to film sets has eyes on India when oil hits $100 dollars a barrel and fuel cheap to ship from Afghanistan. Get an agent/cy. Get a web site. Get on YouTube. Get viral analytics. It’s a global village.

  4. Berni says:

    If what Bruce Laughton says it’s true why do we need a VFX union?

  5. Marcus says:

    Yeah, the vast majority of VFX artists are not “High Tech Pros”. The reason that exceptions like these exists is to enable more flexible work arrangements for programmers – odd hours, telecommuting, not wanting to be forced to clock out when you are at a critical step, etc.
    VFX facilities generally have pretty rigid core hours, you can pretty much log out and pick things back up the next day without loosing your train of thought and – aside from the R&D department – the quality and quantity of actual computer science methods is not at a terribly high level.

    @Berni:
    You need some form of leverage to stop being screwed in general and miscategorized through fishy interpretations of labor law exceptions such as 1099 vs W2 in the US and this ridiculous unpaid overtime in Canada (or the US or UK).

    Furthermore: Portable, sustained benefits… I was getting extremely fed up with years of crappy employer-provided health insurance, which changed every time I went somewhere else OR my employer decided to cut costs and force everyone to switch to an even worse plan. On the other hand, it is extremely expensive to buy what I (as a European) would consider acceptable insurance in the USA unless you can get in on a group rate.

    Being a new-ish TAG member, I now have a great insurance policy which I will also be able to keep at no cost for 6-12 months after I leave a union shop. For the first time in a long while, I am now also paid on time, not getting hassled about clocked time, and generally treated like ANY OTHER WORKER in a high-skill, high-earnings field… that includes being paid more, not less when working on something “cool”. Imagine Google, Oracle, et al trying to lure rare talent with “cool work” instead of good money. Granted, animation and modeling are oversaturated and thus more prone to accepting worse conditions, but I have yet to work somewhere that does not struggle to find qualified TDs on a regular basis… yet play the same stupid games with them as well. And that’s where collective leverage comes back into play.

    I should also mention that I felt no difference in my wage negotiations or job classification when I started my current job. I agreed on wages and any additional benefits with HR and then they forward that information to the union. They are simply bound by *minimums*… there is no artificial ceiling or ANY kind of union control in the hiring process.

  6. […] It’s a sad day for the VFX community as his/her posts were very informative. One of VFX Law’s posts on Vancouver labor law has generated a response from a Vancouver labor attorney. […]

  7. […] that some facilities use to prevent paying OT. This was debunked by IATSE Local 891 as they had a lawyer answer the question on their website. See how that works? A website delivers the information people need to get facts. There was also […]

  8. […] If VFX artists wish to have the ability to negotiate their own terms and conditions of employment ou… […]

  9. James Burbank says:

    20% of VFX artists *at best* could be considered “Programmers”. THat’s assuming you draw no line between scripting and programming. Even then its usually it’s the leads that know to code.

    Dragging a line of MEL to make a shelf button does not make you a programmer. I would love to see the 8 hour day be a standard in our industry, doing OT only as needed. In fact, I’d love to see a cap on OT. Why do so many places pressure people to do 10-12 hour days while we’re waiting for plates?

    Personally, I avoid studios that don’t do real OT, or I negotiate my own terms with them privately. Many studios do their own sneaky version of OT like MPC and they wont budge. That’s also why they have their army of recruiters struggling to find artists. They have their reputation and now they have to deal with it.

    I’ve been pretty anti-union my entire time in the business, but if it takes IATSE or similar to put the fire under everyone ass to finally get the 8-hour standard day… Let me know who I send my union fees to.

  10. Larry Gritz says:

    I must say, I’m as confused as ever. The legal opinion (and, frankly, some of the comments) indicate a shallow understanding of the diversity of VFX workers and their tasks.

    Not all, not the majority, but nonetheless a substantial number of people in VFX do software development, or in various other ways “apply specialized knowledge to the production or development of computer technologies or scientific or technical products.” This ranges from light scripting to major software development, and anywhere from occasional dabbling to programming all day, every day. Sometimes these people are in separate R&D departments, and sometimes they are crewed to shows (shader writers are a prime example). Sometimes they switch back and forth over the course of a production or over the couse of their career.

    With this in mind, can Bruce Laughton please comment about whether this makes VFX workers high-technology professionals, or if a VFX facility would end up with some people or departments classified that way and others not, or if the fact that not everybody is programming all day means that the whole facility would be designated as “not high tech professionals?”

    To IATSE: Would differing designations under the Act have any effect on who could be represented by the union?

    • iatse891vfx says:

      The crux of Bruce Laughton’s comments can be summed up in his last paragraph:

      If VFX artists wish to have the ability to negotiate their own terms and conditions of employment outside of the Employment Standards Act the only avenue available to them is to be represented by a trade union covered by a collective agreement. Section 3 of the Employment Standards Act provides that where collective agreements contain provisions respecting hours or work or overtime the provisions of the Act do not apply.

      In other words, in a unionized workplace where workers are working under a negotiated collective agreement that covers their hours of work and overtime, the high technology clause of Employment Standards Act would not apply. If you are defined as a high tech professional you can still be in the bargaining unit. Those positions who manage people, have the ability to hire and fire, and discipline workers, may be exempted.

      Without a collective agreement the Employment Standards Act provisions for hours and overtime applies.

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