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HomeMy WebLinkAboutUnion 89-03-17IN THE MATTER OF AN ARBITRATION BETWEEN: CAMBRIAN COLLEGE (The Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF A UNION GRIEVANCE - #87A98 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman R.J. Gallivan, Employer Nominee Larry Robbins, Union Nominee APPEARANCES: For the Employer: Wallace Kenny, Counsel R. Hurley A. Favor L. Bouchard For the Union: Malcolm Ruby, Counsel Bill Kuehnbaum, Local President #5665 - [15] AWARD This arbitration involves a grievance filed on behalf of the Local Union relating to the employment of persons in the Tractor-Trailer Driver program. At the outset of the hearing, the parties were agreed that the board of arbitration had been properly appointed, and that we had jurisdiction to hear and determine this matter. The grievance is in the following terms: The .College has failed to include teachers in the Tractor-Trailer Drivers course in the bargaining unit. This violates at least Article 7, Appendix III 1 (d) and Appendix III ~_. The collective agreement provisions to be considered are as follows: Article 1 RECOGNITION 1.01 The Union is recognized as the ex- clusive collective bargaining agency for all academic employees of the Colleges engaged as teachers (including teachers of Physical Education), counsellors and librarians, all as more particularly set out in Appendix I hereto save and except Chairman, Department Heads and Directors, persons above the rank of Chairman, Department Head or Director, persons covered by the Memorandum of Agree- ment with the Ontario Public Service Employ- ees Union in the support staff bargaining unit, and other persons excluded by the legislation and teachers, counsellors and librarians employed on a part-time or sessional basis. NOTE A: "Part-time in this context shall include persons who teach six hours per week or less." NOTE B: "Sessional in this context shall mean an appointment of not more than twelve months duration in any twenty-four month period." Article 7 MANAGEMENT FUNCTIONS 7.01 It is the exclusive function of the Colleges to: (a) maintain order, discipline and efficiency; (b) hire, discharge, transfer, clas- sify, assign, appoint, promote, demote, lay-off, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent provided in this Agreement; (c) to manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, %he scheduling of assignments and work, the exten- sion, limitation, curtailment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. 7e02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. - 3 - Appendix III SESSIONAL EMPLOYEES l(d) If the college continues a full-time position beyond one (1) full academic year of staffing the position with sessional appoint- ments, the college shall designate the position as a regular full-time bargaining unit position and shall fill the position with a member of the bargaining unit as soon as a person capable of performing the work is available for hiring on this basis. 2. The College will give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional teaching positions subject to such operational requirements as the quality of the programs, enrolment patterns and expectations, attainment of program objec- tives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. The College will not abuse the usage of sessional appointments by combining sessional with partial-load service and thereby maintaining an employment relationship with the College in order to circumvent the completion of the minimum twelve (12) months sessional employment in a twenty-four (24) month period. A person assigned to replace a full-time regular employee for up to fourteen (14) working days for unplanned absences in any month shall not have such period(s) con- sidered as sessional employment for the purpose of the computation of the twelve (12) months sessional employment. During such periods such a person shall be paid as if partial-load and within the range of partial- load hourly rates as set out in Appendix II hereof. Other matters concerning the use of sessional appointments may be referred to the E.E.R.C. which shall deal with these matters as priority items. In addition, the Union referred in argument to the following provisions of the Colleges Collective Bargaining Act, R.S.O. 1980, c. 74: 1. (b) "bargaining unit" means the academic staff bargaining unit of employees or the support staff bargaining unit of employees set out in Schedules 1 and 2; (f) "employee" means a person employed by a board of governors of a college of applied arts and technology in a position or classification that is within the academic staff bargaining unit or the support staff bargaining unit set out in Schedules 1 and 2; 48.--{2) Where a conflict appears between any provision of an agreement and any provision of any legislation, the provision of the legislation prevails· 52. Every agreement shall be deemed to provide that the employee organization that is a party thereto is recognized as the exclusive bargaining agent for the bargaining unit to which the agreement applies. 67.--(1) The bargaining units set out in the Schedules are the units for collective bargaining purposes under this Act. (2) The employee organization that is party to the agreement covering the academic staff bargaining unit or the support staff bargaining unit on the 18th day of July 1975 shall be deemed to have been granted bargain- ing rights in relation to such bargaining unit on the 18th day of July, 1975. - 5 - SCHEDULE 1 The academic staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology who are employed as teachers, counsellors or librarians but does not include, (viii) teachers, counsellors or librarians who are appointed, for one or more sessions and who are employed for not more than twelve months in any twenty-four month period. The facts on which this matter is to be decided are not really in dispute. The College offers a course entitled "Tractor-Trailer Driver", of four weeks duration, as one of its adult training programs. The course is listed and described in the College Calendar, students apply to the College for admis- sion, and they report for training to a location on the College parking lot near the Trades Building. A College certificate is awarded but the real purpose of the course is to examine for the Ministry of Transportation and Communications Class "A" licence, and the actual course content is specified by that Ministry. It appears that the Ministry first introduced a requirement for Class A licences for tractor-trailer drivers in 1977; previously only a valid Chauffeur's Licence was required to operate such vehicles. Shortly after, the College began its course, and retained the services on contract of a driving school, Aaron Driving School, which had been in existence since 1973, engaged in private instruction and also in driver education - 6 - courses operated under contract with local high schools. The course has been taught by Aaron Driving School ever since that time. Aaron Driving School is owned by Mr. Stephen Farrell. He does most of the instruction for students, including all of the classroom instruction. He is assisted during the road driving phase of training, the last tw~ weeks of each course, by another instructor, while his wife handles administration for the school. There are no other persons involved in either Aaron Driving School or the instruction program at the College. Originally, Aaron Driving School had other contracts with Northern College, government departments and other clients. By 1979 its contracts with Cambrian College had virtually taken over all of its time, and at the time of the grievance Cambrian College was the school's only instruction contract. Mr. Farrell has been certified by the Ministry of Transportation and Communications as an instructor and examiner for Class A licences. At the end of the course, therefore, he administers a Ministry examination to each student, upon the successful completion of which the Ministry issues a Class A driving licence. It appears that there are two tractor-trailer trucks involved in the training program, both of which are owned by Cambrian College. Mr. Farrell does the routine and minor maintenance on these vehicles, but major repairs and all opera- ting, expenses are paid by the College. The vehicles are parked in the College parking lot, but Mr. Farrell has no office in the adjacent Trades Building. There is a message box in an office there which students and the College a~m~nistration use to contact him, and he is apparently allowed ~ use telephones in certain locations as well. Otherwise, he m~rks out of a jeep, which is the only vehicle owned by Aaron Driving School. All books and materials for the course which are not supplied by the Ministry are provided by the College, an~ the College also provides all necessary audio-visual and radio transmission equipment for the course. There is a written contract between the College and Aaron Driving School which dates from 1977, with amendments only to the amount to be paid to the school for each student instructed. While the contract specifies the length of the course and the breakdown between classroom and practical train- ing, it provides no detailed curriculum, nor mny special require- ments relating to instruction. There are, .h~ever, a substantial number of conditions relating to administration. Mr. Farrell's evidence was that all course requirements, even the breakdown between classroom and practical instruction, come from the Ministry of Transportation and Communications. While one might express surprise at the length of time which this course has been offered without complaint by the Union, the evidence of Mr. Bill Kuehnbaum, President of the Local Union, is that he only became aware of the matter when a member of his executive was transferred to the Trades Building and - $ - noticed in some detail how the course was being offered, and in particular the fact that it was not being offered by teachers who were College employees. There had apparently been some concern during a strike in the autumn of 1984, when the trucks were observed crossing the picket lines. It seems that only later, however, was the Union's attention turned to the precise nature of the arrangements made for this course, as opposed merely to the existence of the vehicles with the College's name on them, and their operation in and around the College premi~e~. Based on these facts, three issues arise. The first is whether the Employer is entitled, under the terms of the collec- tive agreement and the statute, to contract out work which constitutes teaching on a course operated by the College. The second point is whether, by its long inaction in respect of this course, the Union is estopped from complaining about this arrangement at the present time. The final issue is whether, even assuming that the College has the right to contract out work, the present arrangements constitute a valid contracting out, or whether the instructors employed by Aaron Driving School are, in fact and in law, really employees of the College entitled to the benefits of the collective agreement. Neither party urged us to depart from the general principle of arbitral jurisprudence to the effect that, absent express language in the collective agreement to the ~.Dntrary, a bona fide contracting out of work to non-employees who are not within the bargaining unit is a management right: see Re United - 9 - Steelworkers of America and Russelsteel Ltd., (1966) 17 L.A.C. 253 (Arthurs), Re Kennedy Lodge Nursing Home and Service Employ- ees' Union, Local 204, (1980) 28 L.A.C. (2d) 388 (Brunner), Re 401548 ontario Ltd. and Retail, ~holesale and Department Store Union, Local 448 (1980) 111 D.L.R. (3d) 502, 28 O.R. (2d) 697 (Ont. Div. Ct.). It was common ground between the parties that the collective agreement does not specifically prohibit contract- ing out of work of the kind here at issue. The Union argues, however, that the effect of the Colleges Collective Bargaining Act, and in particular the sections set out above, do prohibit contracting out. The College, however, argues that the effect of Schedule 1 of the Act is simply to specify the definition of the bargaining unit in much the same way as the unit might be defined by a labour relations tribunal under other legislation, and that the rest of the legislation simply makes arrangements for collective bargaining in relation to that bargaining unit. In the College's submission, the critical question is whether a particular person is one of "the employees of all boards of governors of colleges of applied arts and technology who are employed as teachers". The College's position is that Mr. Farrell and his fellow instructor are not "employees" and are not "employed as teachers" by the board of governors of this College, and that they therefore do not fit within this bargaining unit, although they undoubtedly would if they were employees. We find this reasoning persuasive. The essence of a - 10 - true contracting out is to give work which might be performed by a bargaining unit member to the employee of another entity. Once someone is an employee of another entity than the board of governors of the College, that person does not fit within the definition of the academic staff bargaining unit as specified in Schedule 1 to the Act, and the Act therefore does not apply to that person. In our view, the most important matter to be considered is not the provisions of the Act, but whether the College has validly contracted this work to Aaron Driving School, so as to remove the employees of Aaron Driving School from the definition of the statutory bargaining unit. As to the issue of estoppel, we have only the evidence of Mr. Kuehnbaum to consider. While it might be somewhat surprising that driver training activity could continue on a monthly cycle for years without the Union's attention ever being attracted to it, Mr. Keuhnbaum explains that short term courses are very hard for the Union to monitor, and that no College document, such as a report on persons hired as sessional lec- turers, was ever provided to attract the Union's attention to this particular course. In the circumstances, we accept Mr. Keuhnbaum's evidence, and find that the Union's silence on this matter was due to a lack of knowledge, rather than any ac- quiesence in the College's practice. In any case, it is dif- ficult to see why, even if there existed an estoppel here, that estoppel could not be put to an end by notice to the Employer, which notice could well be provided by the filing of this - 11 - grievance. Any detrimental reliance which might operate would operate in relation to courses offered in the past, and could therefore be accommodated by the calculation of damages. By whatever reasoning, therefore, we find that the Union is not estopped from bringing the present grievance on to arbitration at this time. The final matter to be considered, therefore, will be determinative of all of the issues in this case; is the Employer's practice in having the Tractor~Trailer Driver course taught by Aaron Driving School a valid contracting out of work which could clearly be performed by members of the bargaining ~nit or is it merely a sham disguising the hiring of Mr. Farrell, and perhaps others, contrary to the collective agreement, as employees working entirely within the bargaining unit's function? The parties were unable to refer us to any cases arising under this collective agreement or its predecessors on this issue. Instead, we were referred to Re Ford Motor Company of Canada Ltd. and United Plant Guard Workers, Local 1958, (1981) 1 L.A.C. (3d) 141 (MacDowell) and Re Maple Leaf Mills Ltd., Grain Elevator Division and Brotherhood of Railway, Airline and Steamship Clerks, (1986) 24 L.A.C. (3d) 16 (Devlin). The Employer relied on the first of these cases, while the Union relied on the second. Before turning to a discussion of these cases, and to our conclusions in this matter, we think that it does not really matter that work was not here "contracted out" in the strict - 12 - sense, since the work was never in fact performed other than as it is at the present time. When this course began to be taught, and at all times since, it was taught through Aaron Driving School by Mr. Farrell. On the other hand, another course, which is offered by the College and is taught by an employee covered by the collective agreement is entitled "School Bus Driver Training Course". There seems to be no doubt that, upon a comparison of the two course descriptions, these courses are so similar as to indicate that the College could easily have decided to teach the Tractor-Trailer Driver course through an employee rather than through a contractor. In our view, therefore, the same con- siderations ought to be applied as would be had the College taken work previously performed within the bargaining unit and given it to an outside contractor instead. There is, as will be seen from the facts set out above, no doubt that the relationship between Aaron Driving School and the College is in form a contract for services, rather than employment.. But form is never conclusive of these matters. Rather, a number of tests have been devised to assist the courts, and arbitrators, in determining what, in substance, is the relationship between the alleged contractor and the alleged employer. A useful review of the jurisprudence is found in the Re Maple Leaf Mills case, at pp. 25-29: In considering the criteria which have been developed to differentiate between an employee and an independent contractor, it is appropriate to begin with the decision of the Privy Council in Montreal v. Montreal - 13 - Locomotive Works Ltd. et al., [1974] 1 D.L.R. 161, [1946] 3 W.W.R. 748. There Lord Wright enunciated the well-known fourfold test to the following effect [p. 169]: In earlier cases a single test, such as the presence or absence of control, was often relied on to determine whether the case was one of master and servant, mostly in order to decide issues of tortious liability on the part of the master or superior. In the more complex conditions of modern industry, more complicated tests have often to be applied. It has been suggested that a fourfold test would in some cases be more appropriate, a complex involving (1) control; (2) ownership of tools; (3) chance of profit; (4) risk of loss. Control in itself is not always conclusive .In many cases the question can -- . Only be settled by examining the whole of the various elements which constitute the relationship between the parties. The fourfold test has been adopted by a number of boards of arbitration in determin- ing whether the employer has effected a genuine contracting out: Re U.A.W., Local 1566 and Wean-McKay of Canada Ltd. (1971), 23 L.A.C. 27 (Palmer); Re C.U.P.E., Local 1 and Toronto Rydro-Electric System (1972) , summarized 24 L.A.C. 308']Palmer), and Amplitrol Electronics Ltd. and Communication workers of America, supra. The test, however, is not to be applied mechanically and the significance of the factors "must inevitably be established in relation to the circumstances of each case"; United Brother- hood of Carpenters & Joiners'of America, Local 1747 v. Baron Dry Wall Ltd., 65 C.L.L.C. para. 16,029 (Ont. L.R.B.); Re U.A.W., Local 1566 and Wean-McKay of Cana~ Ltd., supra, and Re Canadian Industries Ltd. and Int'l Union of District 50, Region 75, United Mine Workers of America, Local 13328 (January 3, 1972), unreported (Schiff); upheld in Re Canadian Industries Ltd. and Int'l Union of District 50, Allied & Techni- - 14 - cal Workers of United States & Canada, Local 13328 (1972) , 27 D.L.R. (3d) 387, [1972] 3 O.R. 63, 72 C.L.L.C. para. 14,130 (Ont. C.A.); leave to appeal refused 29 D.L.R. (3d) 640n, [1972] S.C.R. ix. In this case, it is not a question of whether the security guards assigned to the company premises subsequent to January 1, 1985, are themselves independent contractors. There is no dispute that these individuals are employees and the issue is whether they are employees of the company. In such circumstances, the factors of chance of profit and risk of loss have not been considered particularly meaningful and boards of arbitration have focused predominantly on the factor of control, with some considera- tion being given to ownership of tools: Re Norton Co. of Canada, Ltd., Hamilton an-~ U.S.W, C.I.O, Local 3696, supra, and Re Edd~ Match Co. Ltd. and United Brotherhood of Carpenters & Joiners of America, Local 3175 (January 11, 1985), unreported (Kates). In addressing the factor of control and the considerations appropriate to this factor, the board in Re Norton Co. of Canada Ltd., Hamilton and U.S.W., C.I.O., Local 3696, commented as follows [at pp. 1454-5]: In determining whether the contract amounted to one for services, as distinct from a contract of service, some assis- tance can be derived from the Law of Master and Servant. It is stated in Diamond's "The Law of Master and Servant", Second Edition, at Page 1, that "The relation of master and servant exists between two persons where by Agreement between them, express or implied, the one is under the control of the other. A person is under the control of another as he is bound to obey the orders of that other not only as to the work which he shall execute, but also as to the details of the - 15 - work and the manner of its ex- ecution." At Page 5 is is stated that "The question of whether a person is under the control of another is a question of fact. Control may exist between two persons although the one (1) did not appoint the other; (2) does not pay the remuneration; (3) has no power to dismiss; and (4) has not the exclusive control." Similarly, in Amplitrol Electronics Ltd. and Communication Workers of America, supra, the board stated that the control test involves a consideration of "the distinction between instructions about what work is to be done and instructions about the manner in which the work must be performed". In Re Board of Governors of Riverdale Hospital and C.U.P.E., Local 79 (1974), ~ L.A.C. (2d) 40 (Schiff), the board noted the following [at p. 42]: To weigh the significance of control arbitrators have assessed the degree of the party-employer's right to direct the person's job performance appropriate to the nature of the particular job and the person's skill. In many awards, the party-employer did not choose the person, did not pay him directly and did not purport to discipline him on the spot. Nevertheless, arbitrators defined the person as an employee if he performed the job with the party- employer's materials on the party- employer's premises with the party- employer exercising to a substan- tial degree the right to direct the job performance. In Mayer v. J. Conrad Lavi~ne Ltd. (1979), 27 O.R. (2d) 129, the Ontario Court of Appeal suggested that the fourfold test has now been enlarged by the "organization test" as the appropriate means of differen- - 16 - tia%ing between an employee and an indepen- dent contractor. Referring to the fourfold test enunciated in Montreal v. Montreal Locomotive Works Ltd. et al., supra, Mr. Justice MacKinnon stated as follows [at pp. 737-8] This test has been enlarged by the more recent "organization test" which was approved and applied by Spence, J., in Co-operators Inc. Assn'n v. Kearney (1964), 48 D.L.R. (2d) 1. In that case (pp. 22-3), he quoted with approval the following passage from Fleming, The Law of Torts, 2nd ed. (1961), at pp. 328-9: "'Under the pressure of novel situations, the courts have become increasingly aware of the strain on the traditional formulation [of the control test], and most recent cases display a discernible tendency to replace it by something like an "organization" test. Was the alleged servant part of his employer's organization? Was his work subject to co-ordinational control as to "where" and "when" rather than the "how"? [citing Lord Denning in Stevenson, Jordan & Rarrison Ltd. v. Macdonald, [1952] ! T.L.R. 101,111.]'" Lord Denning in Stevenson Jordon & Rarrison, Ltd. v. MacDonald et al., [1952] ! T.L.R. 101, referred to by Fleming, said this: "'One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the busi- ness, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.'" As can be seen, one component of the organization test is the traditional formula- tion of the control test. The organization test, however, also involves a consideration of the role played in the party-employer's organization by the individual whose status is an issue. In addition to the fourfold and or- ganization tests, in determining the exis- tence of an employment relationship, at least one arbitrator has considered the criteria developed by the Ontario Labour Relations Board to determine which of two or more entities is the employer for the purposes of the Labour Relations Act: Re Ford Motor Co. of Canada Ltd. and United Plant Guard workers, Local 1958 (1981), 1 L.A.C. (3d) 141 (MacDowell). These factors were set out in York Condominium Corp., [1977] O.L.R.B. Rep. 645, to the following effect: (1) The party exercising direction and control over the employees perform- ing the work. (2) The party bearing the burden of remuneration. (3) The party imposing discipline. (4) The party hiring employees. (5) The party with the authority to dismiss the employees. (6) The party which is perceived to be the employer by the employees. (7) The existence of an intention to create the relationship of employer-employee. The application of these factors to a determination similar to the one before me, however, was doubted by the board in Re Royal Ontario Museum and Service Employees Union, Local 204 (1984), 16 L.A.C. (3d) 1 (Adams). There the board suggested [at p. 32] that: "the approach of a labour relations board dealing with certification matters cannot be so easily integrated into arbitral jurispru- dence without qualification as the Ford Motor Co. case appears to do". While the Labour Relations Board is faced with a question relating to the existence of an employment relationship, the question is being asked for a .different purpose and the criteria developed by the board must be viewed in that light. Counsel for the company, in this case, also made reference to the decision of the board in Re Social Planning Council of Metropolitan Toronto and C.U.P.E., Local 1777 (1980), 28 L.A.C. (2d) 134 (Knopf). There the board specified the following criteria to be the most important in determining whether certain project employee~ were actually employees of the party-employer [p. 150]: (1) ContrOl over the selection of employees. (2) Control over the method and performance of the work. (3) Control over the decision whether money should be paid for wages or other expenditures. (4) Control over the length and duration of the performance of job functions. (5) Whether the work performed was part of or integral to that of the alleged employer. (6) Who benefited from the work performed. As is apparent, a number of the factors enunciated by the board pertain to the nature of the control exercised by the party- employer and by considering whether the work was integral to the business of the party- employer, it may also be said that the board applied the organization test referred to previously. In my view, the board in the Social Planning Council award was not endeavouring to establish a new or different test to be applied in determining the existence of an employment relationship, but - 19 - was merely formulating those factors of particular significance to its decision "given the unique situation of the staff selected under Government-funded projects. 'The present situation, of course, is not precisely the same as of the cases discussed. Mr. Farrell only "works" for Aaron Driving School in the very loosest sense; it would be far more accurate to describe him as actually being Aaron Driving School. It is true that he assigns some of the work under the contract to his assistant instructor, and some to his wife, but he is the primary instructor, and his position is solidified by the fact that he has an examiner's certificate and can provide the Class A licence that the course description promises by certifying to the Ministry of Transportation and Communication that the students have passed the appropriate tests. Our inquiry can therefore reasonably focus on Mr. Farrell's relationship to the College, rather than on the essential fiction that Aaron Driving School is somehow interposed in that relationship. A useful starting place is the issue of "ownership of the tools", which in more modern language leads us to look at the capital investment involved in the work to be performed. Mr. Farrell does not own the vehicles on which instruction is given, nor does he even maintain them at his expense. Both the initial capital cost, and ongoing capital expenses, therefore, are borne by the College. The College also provides all books, supplies and materials needed, from audio-visual equipment to teach the classroom portion of the course, to the fuel required to run the - 20 - vehicles during the practical part of the course. While Mr. Farrell owns a jeep which he referred to as his "office", this appears to be more for his own convenience rather than any requirement of the contract with the College. As far as this test is concerned, therefore, the evidence is substantially in favour of a finding that Mr. Farrell is an employee. We turn next to the chance of profit and the risk of loss, which might more reasonably be referred to as the presence or absence of an entrepreneurial element. This is particularly important in the present case, although it was not in the R__e Maple Leaf Mills case, since there is no real business entity interposed, between the person who does the work and the College, to remove the entrepreneurial connection. Mr. Farrell really cannot be said to be in an entrepreneurial position. As we have already observed, he has no capital at risk. While he takes some steps to generate demand for his course, the students are really supplied to him by the College. While he is not paid a salary, he is paid essentially on a "piecework" basis, at a fixed amount per student enrolled in the course. Ne has literally no control over the number of students who are enrolled. If the College is unable to create enough demand, and the number of students enrolled falls below four per truck, Mr. Farrell will be paid less money. It would appear from his evidence that if the numbers fall much below four per truck, the course is simply not offered, and he is paid nothing at all. At the same time, the maximum amount he can earn is also fixed by the number of - 21 - vehicles available, and as has already been observed the College provides those vehicles. It is of some interest that, sometime prior to the grievance, one of the College's three vehicles became unroadworthy, and was no longer used for instruction. At that time, the per student rate was renegotiated to, in effect, maintain Mr. Farrell's earning level. While he pays some expenses out of the amounts paid by the College, the only major expense is the pay to his second instructor. But that amount is also fixed by whether the course is offered or not and by the maximum number of students placed on the course by the availability of trucks for driver training. Finally, we turn to the question of control. There is no doubt that Mr. Farrell carries out his instruction duties essentially without any direct supervision by the College authorities. This probably does not differ very much from the way in which every teacher in the College carries out his or her duties. Moreover, the College has clearly reserved the right to reimpose control at any time, and the contract specifically requires Aaron Driving School to "abide by the College regula- tions pertaining to course offerings in the Industrial Training and Apprenticeship Department", and to operate "in accordance with the integrity of the College in its high standards of training". The College has reserved the right to cancel the contract by providing written notice two weeks in advance of any course, and no doubt would take steps to terminate the contract otherwise if it had any significant concerns about infringement - 22 - of the College regulations or departures from its integrity or its high standards of training, both of which would be express breaches of the contract. In fact, a significant degree of control is exercised by the Ministry of Transportation and Communications. Mr. Farrell testified that its inspectors monitor his course usually twice a year, and this may well account for the fact that the College has not found it necessary to take any more significant steps to exercise the degree of control which the contract undoubtedly gives it. If we pursue instead the modern manifestation of the control test, called the "organization test" in Mayer v. J. Conrad Lavigne Ltd., referred to in the Maple Leaf Mills case above, this factor points even more strongly to a finding of employment. There is, throughout the contract, evidence of "coordinational control" as to "where" and "when" rather than of "how" referred to in that test. Indeed, the contract goes so far as to specify a number of regular reports which are required both on the outcome of the training and of Mr. Farrell's role in the placement of graduates, and on the status of the two vehicles used in training. As to the other facet of the organization test, it is clear that Mr. Farrell fits directly into the College's organiza- tion. The work which he performs is not substantially different from the work performed by all members of this bargaining unit, and the evidence discloses that a course essentially similar to this course, the School Bus Driver course, is in fact taught by an employee of the College. None of the other tests developed in the various cases referred to in Re Maple Leaf Mills, most of which apply to a situation where there exists another business entity which has done the actual contracting, the status of whose alleged employees is to be considered, are really applicable to the matter before us. What we do find, on a review of all of the criteria which are applicable, is that every single one points, more or less strongly, to a finding that Mr. Farrell is an employee of the College rather than a true independent contrac- tor. On the basis of these findings, the only conclusion we can reach is that the grievance must be allowed, and that Mr. Farrell, at least, must be declared to be an employee of the College, and therefore covered by the collective agreement. The result of this determination, the College informed us, is that it likely would not be able to justify offering further instruction in this course. The contribution margin analysis which it provided to demonstrate this does not, however, clearly show that this would be a necessary outcome of any such finding. It was also argued that, because of the requirement for direct contact with the students by Mr. Farrell, because of his certified instructor status from the Ministry of Transportation and Communications, offering the course as outlined by that Ministry would require Mr. Farrell to have contact-hour exposure far beyond what is permitted in the collective agreement. The - 24 - Union responds by saying that the collective agreement permits alternative workload arrangements, and that those could be made to resolve this matter. In our view, these considerations are really irrelevant to our task, which is to interpret the collective agreement. While arbitrators are careful not to assign to a collective agreement a meaning which would render it an absurdity, there is nothing to show that the outcome here would be absurd. In fact, it ia of some significance that the College is able to offer another driving course, the School Bus Driver course, entirely within the strictures of the collective agreement. Whether it is as profitable, as convenient or as satisfactory to do so is not · really relevant. On the other hand, it is clear that the relationship between Aaron Driving School and the College is one of long standing, and a number of people have come to rely upon the arrangement, including Mr. Farrell and his staff. There are also undoubtedly a number of students who are waiting for an oppor- tunity to take a course for which they have already applied. As a result, for the moment we limit ourselves to a declaration that Mr. Farrell is, within the meaning of the collective agreement, an employee who is a part of the bargaining unit. We remit the matter of how this declaration should be implemented in practice to the parties, with the strong recommendation that any implemen- tation take account of the long standing nature of Mr. Farrell's relationship with the College, and of the expectations of Mr. - 25 - Farrell, his other employees, and the students. We will, of course, remain seized of the grievance should there be any difficulty in implementing our decision. DATED AT TORONTO, Ontario this 17th day of March, 1989. Ke~n, Chairman I dissent; see attached "R.J. Gallivan" R.J. Gallivan, Employer Nominee I concur "Larry Robbins" Larry Robbins, Union Nominee DECISION OF R. J. G~LLIYAN There is in evidence before us 'a cony of the contract between Cambrian College and A. Aaron Driving School. It an.~ears on its face to be a normal commercial contract setting ou~ the nrice the College will oa.v to A. Aaron Driving School for or6viding instruction in tractor-trailer driving to certain adult trainin~ students of the Colle.=e. The contract sets out the agreement of both oarties to nro- mote the course nublicly and to seek students for it, sets the number of hours of tnstruction Aaron must Eive to each student, the ne time over v~hich this instruction is to be given, ~'~aron's resoonsib- ilit.v for revortin~ to the College on the orogress and eventual olacenent of each student, an~t ~aron's resoonsibilit~ for the general maintenance, safety and sunervision of the tractor-trailers owned the College. '~he contract ma.v be terminated by mutual agreement at an.v time or uoon two weeks written notice by either oarty. It be noted that the contract does not s.oecify who among Aaron's e~lo.vees is to ~o the training, how many trainers Aaron is to employ, who it shall employ nor their qualifications. Those matters are for decision exclusively by Aaron. The contract simply sets a ~rice the College will Day ~aron for each student. The history and Dractical a~nlication of that contract was ex~.lained in evidence by Steohen Farrell, owner of the A. Aaron driving school. His evidence was that his driving school business has been in existence since 1973 offering driver training, that it first contracted., with the College in 1976 to provide tractor-trailer driver training, that for several years thereafter it continued to have a number of different clients in addition to the College, that at the time of the grievance the College was its only training client, and that Aaron did not judge itself in any way restricted by its contract with the College from offering driver training to any other client if it so wished..His comoany is free to hire as many emoloyees as it decides are necessary to service as many customers as it cares to solicit. That it has chosen in recent years to limit itself to a contract with the College is a free commercial choice of Aaron's owner Farrel! and not a requirement or consequence of the terms of .baron's contract with the College. At the time of our hearing this grievmnce in October 1987, Aaron'orovided en~lo~ent for' its owner, the owner's wife and one other instructor. There is no obligation under the contract betw'een Aaron and the College that Farrell himself act as an instructor. In fact the evidence was that several years ago while he v~as ill one of his emoloyees reolace¢~ Farrell for an extended ~eriod of time. However, it seems likely that because of Ministry' of Transportation regulations (which will be discussed later) Aaron's usefullness to the College would be limited if someone in ~aron's e~lo~ was not licence~ by that Ministry. Given the foregoing, I must dissociate m~;self from the decision of mY colleagues essentially to dismiss those facts which were uncontradicted in evidence before us, and register mM disagreement with their conclusion that the contract between Aaron an~ the College is all just a fiction designed to ~ask Farrell's relationship with the College. In a dispute over subcontracting, those facts are highl~ significant and cannot be dismissed or given so little weight as virtually to be ignored. I do however a~ree with the ma~rit~ that under this collective a~reement there is no restriction on the College manmEement's right to subcontract bargaining unit work, nor is there any such restriction in the Colleges Collective Bar~ainin~ Act. That being the case, the fact that Aaron's emoloyees oerforn work for the College similar to other courses taught by emoloyees within the bargaining unit (such as School Bus Driver training) is irrelevant. The College is free to have such work done by its own emoloyees or to contract it out. In other words, the College is entitled by its ~anagement rights to hire emoloyees to do the work it wants done, or (subject only to labour law desi.~ned to orevent circumvention of certain union rights) to have its available work ~one for it by indenendent contractors. If it decides on the for~er, the emoloyees it hires are then subject to the confines of the barMaining unit and to the strictures of the collective agreement; if the latter, the contractor deals indeoendently with the College in co~oetition with others ~vho ma)~ tender for the sa~e work. The auestion before us then simoly becomes whether as a consequence of the contract between Aaron and the College, and the manner of its aoolication, Farrell and the other employees of Aaron are indeoend- ent contractors. A number of tests have been develooed by the courts, labour relations tribunals and arbitration boards for heloing to answer such a auestion.' While these tests have been refined and apolied in various ways over the years deoending uoon what alleged violation is being weighed in a oarticular case, the fourfold, test ouoted by the majority for determining a contractor's status generslly has been found adequate for the tyoe of case before us. Notwithstanding the various additions or refinements made to these tests, it is noteworthy that the greatest weight and oriority continues regularly to be given by the courts, labour relations and arbitration boards to the issue of "control". See for exanole re: N~n~real v. ~ontreal Locomotive Works Ltd. et al., (1974) 1 D.L.R. 161 (P.C.); re: OPSUE v. the Crown in the Right of Ontario (~.Tinistr?T of the Attorney General) decision of P. C. Picher, Ontario Public Service Labour Relations Tribunal, Jan. 1988, unreoorted; and nunerous arbitration board awards such as re: De Havilland Aircraft of Canada Ltd. and United Automobile ?.'orkers, Local 112, 9 L.A.C.(3d) where after a review of the jurisorudence the arbitrator says at o.377: "It is clear that of all the tests · - enunciated, the question of control is pre-eminent." From the evidence before us it is clear that the College exercizes almost no control over .~aron or its employees. It does not set Farrell's or his emoloyees' working hours. It does not establish the course content nor fix when or how the course is to be given. It does-not decide who or how many emolo~ees Aaron sh~ll e~o!oy. It does not even require that Farrell be one of the instructors. He is free to teach hinself or to have others do it for him so lon~ as ~iinistry of Transoortation, not College, requirements are met. The College ~:oes not evaluate the job oerform..~ance of individual instructors or others in Aaron's employ nor train them nor discinline them nor set their wage rates. Those are Aaron's manage~ent's resoonsibi!it?. The College's contract with Aaron does not limit the latter's ri to have other customers concurrently with the College. The tractor-trailer course content is set by the 7.~inistry of Transportation, not the College. That Ministry establishes the minimum number of hours of training to be given an.~'~ it is insnectors from that Ministry, not the College, who monitor Aaron's work an.~ students' orogress. It is Aaron on behalf of the .~.:inistry, not the College, who determines a ootential stu~ent's suitability to enter the course. It is the ?'~.inistrM, not the College, which sets the standards to qualify for a licence uoon graduation. .Thus the ma~or control over Aaron and its employees is by the Minister of Transnortation, not the College. To hole], that desoite such a degree of control by a third oartw (the [.]inistry) it is really the College which is exercizing control to such an extent as to make Aaron a ~.eoendent contractor and thus an emoloMee of the College (which as I have demonstrated has no control over essential elements of Aaron's work) is to misaooly the control test. The fact that the contract between Aaron and the College requires Aaron to "abide by the College regulations" is not indicative of control, contrary to what my colleagues hold for, as was found in re: Federated Building ~Vaintenance Comnany Limited (l~gS) OLRB Nov. 1585 at page 1595: "A degree of functional interdeoendence is inevitable, and implicit in many subcontractinE arrangements." I conclude therefore, that on the key test of "control" the evidence points strongly to a conclusion that Aaron and its emnloyees are indenendent contractors, not emoloyees of the College. Unlike my colleagues.I am unable to conclude that because the College can, upon notice, terminate its contra~t with Aaron it thereby has sufficient '"control" to make Aaron's emnloyees servants of the College. If that were the criterion, the emnloyees of any business fro~ which the College buys service under a terminable contract could arguably be College employees, and no subcontractinE of bargaining unit work by a unionized emoloyer even though oermitted by law and contract, as here, could ever be valid. That the College owns the tractor-trailers used by Aaron is not oersuasive in this case just as it has not been in the extensive jurisorudence where contract cleaners or food service workers, for examole, obviously oerform their work on the emoloyer's equioment and oremises. Clearly the College's trucks are the major caoital investment reauired for the course, but not the only equipment. Aaron and its employees do not have an office at the ColleMe. Aaron's office is in Farrell's home and his business ohone, listed in directories under Aaron's name, is in that office. The ~.!inistry of Transoortation, not the College, suoolies equipment used by Aaron for eye testing of students, and Aaron owns the tools used to do regular routine maintenance and reoair of the College's trucks. Those tools are transoorted in a vehicle owned by Aaron, the cost of which is born by Aaron from the fees received from the Co!leEe. Finally, as already outlined, it is Aaron which ~ecides whether or not to run a oarticular session of the course. If, in .~aron's judgement, there are insufficient students to make it economically viable to conduct a session, Aaron is free to seek a~itional student recruits or simply not to schedule the course. The scheduling decision is Aaron's which has the right, regularly exerdzed, to decide not to run a session if there are too few students. Aaron thus accents the major burden of the risk of loss or the oooortunity for orofit. Since Aaron is oaid a fixed fee net student, it risks not workin~ yet having to carry its ongoing fixe~ costs if a session is cancelled for want of students ~ loss is to .~aron not the College which, through its contract ~.'~ith Aaron essentially has shifted the risk from itself to another emolover. As with the "control" test, the test of who bears the risk of loss or chance for orofit noints strongly to Aaron and its e~lo?ees as being indeoendent .contractors. Thus the oreoonderence of evidence suooorts a conclusion that the contract between the College and A. Aaron DrivinK School is a valid contract for service with an indeoendent contractor, and I so find. Neither the collective agreement nor the Colleges Collective Bargaining Act orevents the College fron exercizing its right to subcontract work to non-emoloyees who, if instead were emoloyed directly by the College, would normally fall within the bargaining unit. The College has exercized that right in this case and accordingly there has been no violation of the collective agreement. The A. Aaron Driving School and its e~oloyees are indeoendent contractors and not emoloyees of the College.