Effective: November 9, 2001
Responsibility: Vice-President and Chief Financial Officer
1.1 CBC/Radio-Canada will exercise its fiscal responsibilities for independent contracts. Each manager, when entering into a contract for services, must determine the appropriate contractual status of individuals, corporations and other business arrangements that are hired under contract to perform services for the CBC/Radio-Canada.
1.2 Subject to the exceptions listed in section 1.3 of this policy, CBC/Radio-Canada cannot contract with an independent contractor (incorporated or unincorporated) for the services of an individual where the work to be performed by the person comes under the jurisdiction of a collective bargaining unit or agreement, which prohibits contracting out of services.
1.3 Subject to the conditions discussed in the Guidelines and Procedures for Independent Contracts, the following contracts are considered to be independent contracts and the Employee vs. Independent Contractor Questionnaire does not have to be completed:
- Contracts with a bona fide business entity that:
- has at least three employees;
- is offering similar services to third parties; and
- is not constituted for the purpose of offering services of specified individuals to CBC/Radio-Canada and where the contract is not for the services of a specified individual.
- Contracts with members of the following groups
- ACTRA Performers Guild (APG);
- Writers Guild of Canada (WGC);
- American Federation of Musicians of the United States and Canada (AFM) (including GMQ in Québec);
- Société des auteurs de la radio, de la télévision et du cinéma (SARTeC);
- Société professionelle des auteurs et des compositeurs du Québec (SPACQ); and
- Union des artistes (UDA).
- Freelance Per-Occasion contracts.
- Contracts between the CBC/Radio-Canada and non-residents of Canada, where the work is performed outside Canada.
1.4 Secondary contracts with CBC/Radio-Canada employees are considered to be employment contracts unless certain conditions are met. These conditions are outlined in the Guidelines and Procedures for Independent Contracts.
1.5 A written contract with the service provider is mandatory. The contract must be in a standard format approved by the CBC/Radio-Canada Legal Department.
1.6 The Employee vs. Independent Questionnaire must be completed for all independent contracts (except those exempt under section 1.3).
1.7 The results of the completed Questionnaire must properly support the independent contractor relationship with CBC/Radio-Canada. CBC/Radio-Canada Finance and Administration must review and sign the Questionnaire.
1.8 When dealing with independent contractors, managers must ensure that the relationship with the contractor is dealt with in accordance with the written terms of the contract and the completed Questionnaire.
1.9 This policy replaces the previous version dated November 16, 1998 and applies to all new contracts, contract renewals and contract amendments for the services of an individual.
2. GENERAL PRINCIPLES
2.1 This policy follows the criteria used by the courts and Canada Customs and Revenue Agency to distinguish between employment and independent contracts. The determining factor is the nature of the working relationship and not the form of the contract or the legal status of the contractor.
2.2 There are four basic tests applied by the courts in determining whether a contract is one of employment or is independent. These four tests are:
- Control of work to be done;
- Ownership of tools;
- Financial risk of the contractor; and
- Degree to which the contractor is integrated into the workforce.
These four tests are incorporated in the Employees vs. Independent Contractor Questionnaire.
2.3 An employment relationship is likely to exist from CBC/Radio-Canada’s perspective when:
- a person agrees to work (either on a full-time or part-time basis) for the employer for either a specified or indeterminate period of time;
- the relationship does not necessarily envisage payment for the completion of a specific task or to provide a specific product ;
- a person puts their personal services at the disposal of the employer in an exclusive manner during some period of time; and
- the employer has the right to control the amount, nature and management of the work to be performed and the manner in which the work is to be performed.
2.4 An independent contractor relationship is likely to exist from CBC/Radio-Canada’s perspective when:
- a person agrees to perform a specific task or to provide a specific product to the CBC/Radio-Canada; and
- a person is engaged to achieve a defined objective and is given all the freedom required to achieve the desired results.
3. OTHER INFORMATION
3.1 Detailed guidelines, procedures and the Employee vs. Independent Contractor Questionnaire are found in the Tax Guidelines and Procedures.
4.1 All questions related to the interpretation or application of this policy should be referred to local Finance and Administration or the Tax Department of Corporate Finance and Administration. Industrial Relations/Human Resources must be consulted for guidance on issues relating to the collective agreements or employment relationships.
4.2 The policy does not attempt to establish rigid rules and procedures for every conceivable contractual arrangement and there will be exceptions even to the general guidelines provided. In cases where the policy and a collective agreement are in conflict, the collective agreement will prevail (unless it violates any legislative requirements imposed on CBC/Radio-Canada). Where the policy or collective agreement does not cover a subject matter, management will make any final determination required.
- This policy was updated November 2003
- This policy replaces Corporate Finance and Administration Taxation Manual #3.2, Employer-Employee / Independent Contractor Status Contract of Service / Contract for Service.
Please see Appendix B, Briefing Notes, for the changes from the previous version.
All questions related to the interpretation or application of this policy should be referred to local Finance and Administration or the Tax Department of Corporate Finance and Administration. Industrial Relations/Human Resources must be consulted for guidance on issues relating to the collective agreements or employment relationships.
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