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Arbitration Ruling: Baxter SG Residency BC LAC 2011

Arbitration Ruling: Baxter SG Residency BC LAC 2011

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Published by KathleenH
An arbitration ruling on the application of non-hiring of BC residents on film productions engaging in the BC Production Tax Credits.
An arbitration ruling on the application of non-hiring of BC residents on film productions engaging in the BC Production Tax Credits.

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Categories:Types, Business/Law
Published by: KathleenH on Sep 12, 2013
Copyright:Attribution Non-commercial

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09/13/2013

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IN THE MATTER OF AN ARBITRATION UNDER THEBRITISH COLUMBIA
LABOUR RELATIONS CODE,
R.S.B.C. 1996 c.244BETWEEN:Stargate Universe Productions II Inc.(
“Employer”)
 AND:British Columbia and Yukon Council Film Unions
(the “Union”)
 (Re: Tor Baxter Grievance)ARBITRATOR: Stan Lanyon, Q.C.COUNSEL: Barry Dong and Kacey Krennfor the Employer Bruce Laughton, Q.C.for the UnionDATE OF HEARING: January 27, 2011Vancouver, BCDATE OF AWARD: February 14, 2011
 
 2A W A R DI. Introduction[1]
 
The Union argues that its grievance is both a policy and an individual grievance. Itclaims that
the Employer’s unilateral rule
is unreasonable: that a non-resident of BritishColumbia, who is otherwise qualified, will not be dispatched to work on any of itsproductions.[2]
 
The Employer replies that the grievance is not arbitral because the Grievor was notemployed at the time that the grievance was filed;
and, second, it argues that the Employer’s
residency requirement complies with the Provincial tax credit requirements, and is thereforereasonable.II. Facts[3]
 
The Employer, Stargate Universe Productions II Inc., is a film and television
production company that produced Season 2 of the television series, “Stargate Universe”, in
Vancouver, British Columbia, from February to November 2010. Stargate Universe isrelated to the Stargate series, which also includes Stargate SG-1 and Stargate Atlantis. Eachseason of each series involves a new production entity, and therefore a new Employer.Metro-Goldwyn-Mayer Studios is the distributor of the Stargate series.[4]
 
Stargate Universe Productions II Inc. is signatory to the Master Agreement betweenthe B.C. and Yukon Council of Film Unions and the Canadian affiliates of the AllianceMotion Picture and Television Producers (AMPTP) and the B.C. Branch of the CanadianFilm and Television Production Association (CFTPA
 – 
the Producers/Employers). TheMaster Agreement governs the terms and conditions of employment for employees oncertain film and television productions in B.C. and the Yukon. The term of the currentMaster Agreement is March 29, 2009 to March 31, 2012. The Union, of which the Grievor,Tor Baxter, is a member, is IATSE 891, whose members work in a wide variety of 
 
 3departments including construction, lighting, make-up, set direction, sound, editing, specialand visual effects.[5]
 
The Grievor is a member of the Construction Department of IATSE 891, and worksas a Scenic Carpenter. Mr. Baxter was first employed on Stargate SG-1, Season 2, in March1998 through to Stargate SG-1, Season 5, October 2001. He returned to Stargate SG-1Season 8 in March 2004, followed by Season 9, and worked concurrently on StargateAtlantis Seasons 1, 2 and 3, all ending in November 2006. From February to August, 2007,Mr. Baxter worked on Season 4, Stargate Atlantis, and in addition worked on Stargate
 – 
theArk of Trust, and Stargate
 – 
Continuum. From February to October 2008 he worked onSeason 5 of Stargate Atlantis, and finally, from November 2008 to November 2009, he wasemployed on Stargate Universe Season 1.[6]
 
Employees in the film and television industry are required to complete a residencydeclaration stating that they reside in Canada, and the Province of British Columbia.Production companies that produce motion pictures and television series in BritishColumbia qualify for both federal and provincial tax credits. Currently the available taxcredit on labour costs in British Columbia is 33%; the federal tax credit is a further 16%.The Canada Revenue Agency (CRA) administers and audits both the provincial and federal
tax credits. It performs audits of the production’s payroll records to determine the
totalamount of tax rebate that a specific production is entitled to.[7]
 
It is up to each employer to collect the required residency information in order to
qualify for the tax credit. In evidence is Mr. Baxter’s residency declaration
. On February 5,2007, he declared, in respect to Stargate Atlantis Season 4 production, that he was a residentof British Columbia. On January 28, 2008 he filled out the same residency declarationstating that he was now a resident of Point Roberts, Washington State, United States of America. Later that same year, November 28, 2008, he again declared that he was aresident of Point Roberts.[8]
 
Julie Rieder has been the Production Accountant for the past seven years on bothStargate Atlantis and Stargate Universe series. Her duties include both the preparation of 

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