HomeMy WebLinkAboutUnion 06-10-06
IN THE MATTER OF AN ARBITRATION UNDER SECTION 48
OF THE LABOUR RELATIONS ACT, 1995 (as amended)
BETWEEN
Ontano PublIc ServIce Employees
Umon ("OPSEU" or "the umon")
AND
Ontano Property Assessment CorporatlOn/MumcIpal
Property Assessment CorporatIon ("OP AC" or "the employer")
And m the matter of a claIm that certam mdIvIduals were "employees" of
OP AC, rather than "employees" of a busmess known as Pro Temps Personnel
( "Pro Temps" )
BEFORE. R.O MacDowell (ChaIr)
Pamela Munt-MadIll (UnIOn Normnee)
Robert GallIvan (Employer Normnee)
APPEARANCES.
For the Umon. Bons Bohuslawsky (Counsel)
TIna FaibIsh
For the Employer Douglas Gray (Counsel)
John Saunders (Counsel)
Greg Volkes
A heanng m thIS matter was held m Toronto, Ontano, on January 20, 2004,
May 5 and June 7, 2004, Apnl 29, 2005, and February 9, 2006
AWARD
I - Introduction. what this case is ahout
ThIs arbItratIOn proceedmg arIses from a dIspute between the umon and the
employer over the "status" of certam mdIvIduals who were workmg m OP AC's offices m
Toronto The umon says that these mdIvIduals were temporary "emplovees" of OP AC,
who fell wIthm the scope of the bargammg umt represented by OPSEU That bargammg
umt IS defined m the collectIve agreement as follows
2.01 The Employer [OPAC] recognIzes the umon as the sole and
exclusIve bargammg agent for all emplovees of the Emplover in
the Province of Ontario, save and except supervIsors (other than
Manager Mappmg ServIces, and Manager Data ServIces),
managers, those above the rank of supervIsors and managers, those
employed m a confidentIal capacIty m matters relatmg to labour
relatIOns and those m the office of the PreSIdent and CAO
2.02 For f!reater certain tv. such emplovees include re1!ular and
temporarv emplovees. students, and such other employees as may
be mutually agreed. [emphasIs added]
As WIll be seen. the collectIve agreement prOVIdes, generally, for a provmce-wIde, "all
employee" bargammg umt to whIch the collectIve agreement then applIes, and It also
speCIfically provIdes [" .For greater certamty "] that thIS bargammg umt wIll include
"temvorary emvlovees
In the umon' s submIssIOn, that IS an apt descnptIOn of the mdIvIduals
whose status IS m dIspute m thIS case. Moreover, from the umon's perspectIve, the fact
that OP AC chose not to treat these workers like OP AC employees, IS eVIdence of a breach
2
of the collectIve agreement not eVIdence that the dIsputed workers were "emplovees" of
someone else.
OP AC dIsagrees. OP AC says that these dIsputed mdIvIduals were not
"employees" of OP AC at all. Rather, they were "employees" of another busmess, known
as "Pro Temps Personnel" ("Pro Temps"), whIch (accordmg to OP AC) supplIed the
workers to OPAC, so that OPAC could complete certam short-term 'projects' m whIch
OP AC was then engaged. OP AC mamtams that smce the persons m questIOn were not Its
own "employees", (but rather, were "employees" of Pro Temps), there was no oblIgatIOn
to treat them as "temporary" OP AC employees, or to apply the collectIve agreement to
them.
*
The questIOn before us, therefore, can be stated qUIte SImply. who was the
"real em plover" of these temporary workers - OP AC or Pro Temps? For, If the disputed
mdIvIduals were "temporary employees" of OP AC, (as the umon claIms), then the
collectIve agreement should have been applIed to them, and If the dIsputed mdIvIduals
were employees of Pro Temps (as OPAC mamtams), then thIS gnevance should be
dIsmIssed. No one asserts that these workers could be "employees" of OP AC, and yet not
be covered by OPSEU's "all employee" collectIve agreement; and the umon does not
claIm that the OP AC collectIve agreement could extend to these workers, If they were not
"employees" of OP AC Accordmgly, the dIsposItIon of thIS case turns on the
IdentIficatIOn of theIr "real employer" OPAC or Pro Temps.
1
To be clear there IS no dIspute that the mdIvIduals m questIOn were
"emplovees" of someone No one suggests that they were "mdependent contractors", or
that they were "self-employed" The questIon IS whether they were "employees" of Pro
Temps, or "employees" of OP AC Those were the chOIces that were put before us for
consIderatIOn.
*
We WIll look later at what the dIsputed mdIVIduals were actually doing
whIle they were workmg at the OP AC premIses III Toronto TheIr work - and theIr work
settmg - wIll both be dIscussed m more detaIl below
However, we mIght note at the outset, that the fact that persons outsIde the
bargammg umt may be domg "bargammg umt work" (i e. work that was typIcally done, or
could be done, by bargammg umt employees), does not, in itself, tngger any breach of the
collectIve agreement; because there IS nothmg m the collectIve agreement that prohibIts
the transfer of "bargammg umt work" to persons outsIde the bargammg umt. For unlike
some collectIve agreements, the one that IS currently before us, does not contam any
prohibItIon on "contractmg out", nor IS there any restnctIOn on transferrmg "bargammg
umt work" to "outsIders" Indeed, like most non-craft collectIve agreements, the one now
before us does not root the umon's "bargammg nghts" m partIcular kmds of work; nor, on
ItS face does It gIve the umon's members a monopoly over domg that kmd of work.
Accordmgly, whIle the nature of the employees' "work" may figure mto
the analysIs of "who IS theIr employer?" , the Issue that we have to deCIde IS NOT whether
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It IS legItImate for "outsIders" to be domg "bargammg umt work", but rather, whether the
dIsputed mdIvIduals m thIS case were employees of OP AC, or employees of Pro Temps -
WhICh IS to say, whether they really were "outsIders" m thIS legal sense
*
A hearIng m thIS matter was held m Toronto, OntarIo, on January 20,2004,
May 5, 2004, June 7, 2004, AprIl 29, 2005, and February 9, 2006 The partIes were
agreed that thIS board of arbItratIon has been properly constItuted under the terms of the
collectIve agreement, and that the board has JUrISdIctIOn to hear and determme the matters
m dIspute between them. The partIes were further agreed that, m the event that we find
that there has been some breach of the collectIve agreement, we may remam seIzed wIth
respect to the questIOn of remedy
NotIce of thIS arbItratIOn proceedmg was gIven to each of the mdIvIduals
whom the unIOn says were "employees" of OP AC, because It appeared to the partIes that
those mdIvIduals mIght be affected by the outcome of thIS case, and that It mIght matter to
them whether, (at the relevant tIme), they were to be treated as "employees" ofOPAC or
"employees" of Pro Temps. However, by the tIme that the case was lItIgated, all of these
so-called "agency workers" had departed from OP AC (or had been hIred on by OP AC as
permanent employees - see below), and none of them sought to mtervene m thIS
proceedmg, or to make representatIOns wIth respect to the IdentIty of theIr "real
employer"
)
We dId receIve testImony from two "agency workers", who appeared as
wztnesses Both of those mdIvIduals testIfied about theIr work and theIr work
relatIOnshIps, whIle workmg at the OP AC premIses m Toronto But none of the dIsputed
mdIvIduals sought to partICIpate as ''parties'' m thIS proceedIllg.
*
The background was not substantIally m dIspute although the partIes have
very dIfferent VIews about how those facts should be charactenzed for collectIve
agreement purposes.
*
The unIOn says that the relevant legal prIncIples have already been
establIshed m an earlIer arbItratIOn award between these same partIes, WhIch mvolves the
same legal Issues, and (accordmg to the unIon), arIses from qUIte sImIlar facts. In that
award, [now reported as Re Municipal Property Assessment Corporation and Ontario
Public Employees Union (2002), 109 L.A.C (4th) 386)], ArbItrator Howe dIscussed the
"who IS the employer?" questIon, and concluded that some temporary workers, supplIed
by a personnel agency, were "employees" of OP AC, rather than "employees" of the
agency that had referred them to work at OP AC In the unIon's submIssIon, the Howe
award IS "on all fours" wIth the present case; and thIS arbItratIOn board should embrace the
same analysIs, and come to the same conclusIon, as ArbItrator Howe dId.
*
Once agam, OPAC dIsagrees. OPAC submIts that ArbItrator Howe's case
was "wrongly deCIded", and that, m any event, the present SItuation IS dIstmgUIshable.
*
6
In the result, thIS decISIon wIll necessarIly Illvolve a consIderatIon (or
perhaps reconsIderatIOn) of a recent, qUIte sImIlar case, between these same partIes,
mvolvIng the same collectIve agreement language, and raIsmg the same legal Issues.
Indeed, the gnevance that ultImately made ItS way to ArbItrator Howe m the sprIng of
2002, appears to have been ongomg at the tIme that the busmess arrangement wIth Pro
Temps was beIng concluded.
The gnevance that led to the Howe award was launched m AprIl 2001, and
the hearIngs before ArbItrator Howe, were held m March and June 2002, while the Issue
presently before us matenalIzed m late 2001, and the UnIon's gnevance was filed m early
2002 AccordIngly, It should have come as no surprIse to OP AC, that the UnIon (VIa the
present gnevance) was challengmg OPAC's arrangement WIth a dIfferent personnel
agency Because m both cases, the UnIon saw groupmgs of agency workers attendmg at
OPAC's premIses, ostensibly domg bargammg UnIt work; and m both cases OPAC took
the pOSItIOn that these mdIvIduals were employed by someone else, so that the collectIVe
agreement had no applIcatIOn to them. And m both cases, the UnIon saw thIS as a challenge
to the "mtegrIty of the bargammg UnIt"
II - The backeround in a little more detail. The collective aereement context
OP AC, as ItS name suggests, IS m the busmess of domg property
evaluatIOns. However, at one tIme, what IS now "OP AC" was a component of the
provIncIal public servIce. That component of the CIvIl servIce was "prIvatIzed" m or about
7
1998 - at whIch pomt, the OP AC employees ceased to be provIncIal cIvIl servants, and the
collectIve bargaInmg partIes became "prIvate sector actors", whose collectIve bargaInIng
relatIonshIp was governed by the Labour Relations Act
NotwIthstandIng "prIVatIzatIOn", OPAC has mamtaIned Its collectIve
bargaInmg relatIOnshIp wIth OPSEU, and, smce prIvatIzatIon, the partIes have negotIated
several collectIve agreements. The collectIve agreement relevant to the present case, ran
from November 30,2000 to December 31,2002.
The recogmtlOn clause of the 2000-2002 collectIve agreement, IS recorded
above; and, as noted, It specIfically contemplates (" .for greater certaInty") that OP AC
may hIre "temporary emplovees" Those temporary emplovees have dIfferent terms of
employment than regular/permanent employees do, but, they are clearly part of the "all
employee" bargaInIng UnIt to whIch the collectIve agreement applIes.
Put dIfferently' the fact that an IndIVIdual may only work for OP AC for a
short perIod of tIme, does not, in itself, determIne whether such IndIVIdual IS an
"employee" of OP AC, nor does It exclude hun/her from the scope of the bargaInIng unIt,
or the protectIons of the collectIve agreement. On the contrary, the partIes have
speCIfically stIpulated (" for greater certaInty") that "temporary employees" will be
covered by the collectIve agreement; and they have also contemplated that such
"temporary" employees, wIll have dIfferent terms and condItIons of employment than
regular/permanent employees.
8
If temporary employees are engaged, the partIes have provIded that they
wIll fall wIthIn the bargamIng umt. Nelther short tcnure, nor dIfferent (and less generous)
employment terms, are necessarIly determInatIve of "employee status" or "bargaInIng umt
membershIp"
That saId, there IS no contractual definItIon for the term "employee" or for
the term "temporary" , nor do we have much eVIdence about OP AC's hIstorIcal use of
temporarIes, or what the partIes may have had In mInd when they negotIated the collectIve
agreement prOVISIons respectIng "temporary employees" We heard very lIttle eVIdence of
past practIce or collectIve bargaInmg hIstory - other than the pomt, (not dIsputed), that In
the round of bargaInIng precedmg the 2000-2002 collectIve agreement, the umon sought a
rcstnctIon on the transfer of "bargaInIng umt work" to persons excluded from the
bargammg umt, and the employer refused to agree to such restrIctIon.
In the course of the eVIdence, there was some passIng mentIOn of OP AC
(or Its Crown predecessor) USIng "agency employees" or "contract employees" In the past.
But no detaIls were gIven, and prIor to 1998, what IS now "OPAC", operated In a very
dIfferent legal, statutory, and collectIve bargaInIng enVIronment.
In consequence, we do not know how the relatIOnshIps In 2001-2002 whIch
are the subJect of thIS proceedIng, compare WIth those that OP AC may have had WIth so-
called "contract employees", whIle OPAC was stIll a component of the MInIstry of
Fmance - or whether any "contract employees" then employed, were obtaIned from
9
agencIes, or on what terms Conversely, the relatIOnshIp wIth whIch we can compare the
current sItuatIon, IS the one that was set out and analyzed by ArbItrator Howe, m the
earlIer award between these same partIes a relatIOnshIp whIch, the umon says, IS
analytIcally IdentIcal to the one currently before us.
The current collectIve agreement does not define "temporary" or stIpulate
any mInImUm tenure for "temporary" employees. Nor does the collectIve agreement
prescribe any partIcular hmng process or form of "contract" that temporary workers WIll
have. Or what temporarIes may be hIred for But the agreement does provIde that If a so-
called "temporary posItIon" IS maIntaIned for two years, then the employer may be oblIged
to create a "permanent" posItIOn. ArtIcle 5 of the collectIve agreement, and an
accompanymg "Letter of UnderstandIng", address the questIOn of Temporary Employees
as follows.
TEMPORARY EMPLOYEES AND STUDENTS
5.01 The follOWIng artIcles shall apply to temporary
employees 1,2,3,4,6,7,8,9,10 (except 10 05),12,(except 1206 and
1207),15,16, 17, 18,20,27,28 No other artIcles apply
5.02 Temporary employees shall receIve 10% of base wages
In lIeu of holIdays, vacatIons and benefits and In lIeu of pay
thereof.
5.03 Temporary employees shall accrue attendance credIts a
the rate of one and one-quarter days after each month of full
attendance. Attendance credIts are for sIck leave purposes only,
and for no other purpose. Use of such credIts IS subJect to such
medIcal eVIdence, If any, as the Employer may reqUIre
10
5.06 Where the same work has been performed by a
temporary employee for any penod of at least two (2) years
consecutIve years after the date of ratIficatIon (except for
SItuatIons where the employee IS replacIng a regular employee on a
leave of absence authorIzed by the employer or as provIded for
under the collectIve agreement) and where the employer has
determmed that there IS a contInumg need for that work to be
performed on a full-time basIs, the employer shall establIsh a
regular posItIon to perform that work.
5.07 Where the employer has determIned that It WIll convert a
pOSItIon In accordance WIth 5 06 the status of the Incumbent III the
pOSItIon WIll be converted from temporary to regular, provIded that
the Incumbent has been In the pOSItIon m questIon for at least two
years.
*
LETTER OF UNDERSTANDING RE Seniority - Temporary
Employees "ThIS wIll confirm that senionty for temporary
employees WIll be calculated based on hours worked SInce the
commencement of contract employment WIth OP AC"
"Temporary employees" have dIfferent (and lesser nghts) than regular
employees do, and theIr senIorIty IS calculated III a dIfferent way For example they
receIve no benefits, as such, but rather receIve a 10 % top-up In lIeu of benefits. However,
to repeat. temporary employees are clearly part of the bargaInmg UnIt; and they have
access to whatever rIghts and protectIOns the collectIve agreement gIves them - even
though theIr attachment to OP AC IS only "temporary" The partIes have dIrected theIr
mInds to "temporarIness" and have prOVIded for It m theIr bargam, and they have not set
some lower lImIt (e.g. some mImmum number of weeks) that a worker must put In, before
attaInIng "temporary status" BeIng employed "temporanly" IS suffiCIent; and the duratIOn
of "temporary" - at the upper and lower margIn - IS left undefined and unrestrIcted.
11
*
For convenIence, we wIll sometImes refer to these IndIVIduals as "ArtIcle 5
employees" - bemg "employees" who are hIred, short term, by OP AC, under ArtIcle 5 of
the collectIve agreement, to meet some busIness need, and WIthout any long term
commItment from OP AC to theIr contInued employment.
*
As wIll be seen from ArtIcle 2.01 of the collectIve agreement. the
bargamIng umt IS defined, comprehensIvely, m terms of "all emplovees" and not "work"
(I.e. the bargaInIng UnIt encompasses all persons "employed" by OP AC, and IS not defined
WIth reference to what those persons are actually dOIng from tIme to tIme). Moreover,
there IS no guarantee of "work", or any partIcular kInd of "work", nor IS there any
guarantee of any partIcular level of employment. The bargaInIng unIt can contract, If
employees are "let go", and It can expand If new employees are hIred on, and the
collectIve agreement (VIa ArtIcle 2.01) elastIcally applIes to both addItIons and
contractIOns, whether of permanent or temporary staff, and regardless of what work they
are domg, or where they are workmg (thIS IS a provInce-wIde bargaInIng UnIt) Indeed
"bargaInIng nghts" SUbSISt m relatIOn to the genenc group of employees defined In ArtIcle
201, even when the collectIve agreement has expIred, and the partIes are negotIatmg a
new one.
In thIS respect, the terms ofthe collectIve agreement are unremarkable.
12
The collectIve agreement also contaInS faIrly standard layoff/recall
provISIOns, recognIZIng that the employer can adJust the work force to meet operatIOnal
needs, the agreement provIdes that vacanCIes, promotIOns, and re-assIgnments are subJect
to a postmg/applIcatIOn process, and the employer has been gIven faIrly wIde latItude In
fillIng vacanCIeS on a "temporary" basIs (whIch there means for up to 9 months) Hinng IS
also largely unfettered. But any termInatIon of employment (for those employees past the
6 month probatIon perIod) must be for ''.Just cause" - and, presumably, must also be In
accordance wIth any mInImUm reqUIrements of the Employment Standards Act
Work classIficatIOns and wage rates are lIsted In an AppendIx A to the
agreement, but there are no negotIated Job deSCrIptIOns (or If there are, they were not put
before us) Finally, as In most collectIve agreements, there IS a faIrly comprehensIVe
"management rIghts clause", whIch reserves to the employer the rIght to conduct ItS
busIness, as It sees fit, except as expressly lImIted by the language of the collectIve
agreement. Articles 1 02 and Article 4 of the collectIve agreement read as follows.
1.02 ThIS Agreement sets forth the entIre Agreement on
rates of pay, hours of work and other condItIons of employment.
Amendments to thIS agreement may only be made In wntIng on
the agreement of both partIes. There are no representatIOns,
warrantIes or condItIons that affect the rIghts of the partIes and
employees, save and except those speCIfically set out In thIS
agreement.
4.01 The Umon acknowledges that It IS the exclUSIve rIght of
the Employer to
(a) maIntaIn order, dISCIplIne and effiCIency;
(b) hIre, transfer, claSSIfy, aSSIgn, appoInt, promote, demote,
appraIse, traIn, develop, layoff and recall employees
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(c) dIscIplme and dIscharge employees for Just cause, except
that probatIonary employees may be dIscharged wIthout Just
cause;
(d) generally to manage the enterpnse In whIch the employer IS
engaged and wIthout restrIctmg the generalIty of the
foregoIllg, the rIght to plan" dIrect and control operatIOns,
facIlItIes, program: systems and procedures, dIrect Its
personnel, and determIne complement ,organIzatIon,
methods and the number, locatIon and classIficatIOn of
personnel reqUIred from tIme to tIme, the number and locatIOn
of operatIOns, bUIldIngs, eqUIpment and facIlItIes, servIces to
be reformed the schedule m of aSSIgnments and work, the
extensIOn, lImItatIon, curtaIlment or cessatIOn of operatIons
and all other rIghts and responsibIlItIes not speCIfically
modIfied elsewhere III thIS Agreement.
4.02 The employer shall exercise the above nghts In a manner
conSIstent WIth the express terms of the CollectIve Agreement.
There IS nothIng m the collectIve agreement prohibItmg the kInd of
arrangement WIth Pro Temps here under reVIeW; but, by the same token, there IS nothIng
that IllumInates that relatIOnshIp very much eIther - other than the contractual treatInent of
"temporary employees" that we have already mentIOned, and what mIght be gleaned,
mferentIally, from the way m WhICh the collectIve agreement IS structured.
It IS not dIsputed that If the agency workers were "employees" of OP AC,
then they would have had dIfferent terms and condItIons than the ones under WhICh they
were workIng under whIle on the OP AC premIses; and It also follows that If they were
"employees" of OP AC, covered by the collectIve agreement, then OP AC would bear both
the legal and economIC burdens of beIng theIr "employer" - mcludmg the applIcatIOn of
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any statutes that pcrtaIned to the employment relatIonshIp (such as the Employment
Standards Act)
However, It IS not necessary for present purposes, to IdentIfy what those
rIghts and oblIgatIOns would be. We merely note, that, under the collectIve agreement, the
employer retaInS conSIderable flexibIlIty In the way that It engages, or dIsposes of, ArtIcle
5 "temporary employees", and that thIS would be the case, whether It obtaIned those
"employees" from some employment referral servIce (be It government or prIvate), or
whether It hIred them Itself, "off the street"
III - The nature of the evidence that was put before us
The "employment relatIOnshIp" IS normally thought of as a contractual one,
In whIch the "emplovee" prOVIdes ms/her labour to an "employer" for "wages", and, once
establIshed, each party to the arrangement then has recIprocal rIghts and oblIgatIons at
common law, under the wntten agreement (if there IS one), and under varIOUS regulatory
statutes that pertaIll to "employment" The IdentIficatIOn of the "emplover" party to such
relatIOnshIp, therefore, carnes wIth It the asSIgnment of the vanous legal rIghts and
responsibilItIes that are assocIated wIth the status of beIng "the employer", and that IS also
typIcally the baSIS for the ImpOSItIon of statutory "employer" oblIgatIOns, as well. to pay
mInImUm wages, to mamtam a safe work place, to aVOId "dISCnmInatIon", to adhere to
rules and lImItatIOns on hours of work and other workIng condItIons (e.g. to seek
employee "consent" for certaIn overtIme hours under Part VII of the Employment
1 )
Standards Act), to ensure "pay eqUIty" as between male and female workers; to engage m
collectIve bargaInIng If the employees so choose; to pay the Employer Health Tax; and so
on. SImIlarly, the "emvlovee" party to the relatIonshIp has a vanety of nghts and
responsIbIlItIes, eIther express or ImplIed (such as the duty of fidelIty, the duty to mamtam
the confidentIalIty of the employer's busIness mformatIOn, etc ), and these, too, eXIst both
at common law and under vanous statutes.
The "employment relatIOnshIp" IS the legal platform from whIch these
rIghts and oblIgatIOns spnng; so that IdentIfYIng the partIes to that relatIonshIp, may
become the necessary startIng pOInt, for sortIng out what those legal rIghts and
responsibIlItIes actually are. That IS the task that we have been asked to perform III the
Instant case, and we wIll return to that theme later
*
GIven the Issues that have been raIsed m thIS case, It has been necessary for
us to carefully examIne the relatIonshIp between OP AC and Pro Temps, and between each
of them and the dIsputed workers, m order to IdentIfy whIch of the two candIdates -
OP AC or Pro Temps - IS the "real employer" of the dIsputed IndIVIduals, for collectIve
agreement purposes. Those relatIOnshIps WIll be dIscussed In some detaIl below
However we should note that the dISCUSSIon of the work settIng below, IS
largely based upon the oral testImony of the vanous WItnesses - each of whom described
the SItuatIon, from hIs/her own perspectIve. For unlike some of the cases to WhICh we
were referred, there was no wntten "contract" between OP AC and Pro Temps, settIng out
16
'"
the terms of the busmess relatIonshIp between them, nor dId we see any wntten agreement
(or SImIlar document), detaIlmg the relatIOnshIp between Pro Temps and the dIsputed
workers.
ObVIously, as between OPAC and Pro Temps, there was a settled web of
busmess understandIngs, pursuant to whIch qUIte a lot of money changed hands (for
example' by our calculatIon, based upon ExhibIt 4, OP AC paId to Pro Temps more than
$380,000 In 2002 - about $248,000 of WhICh was ultImately paId to the workers, and
about $135,000 of whIch was retaIned by Pro Temps, as a "mark up", for servIces
rendered) However, accordIng to Anne ROUIllard, one of the two OP AC managers who
gave eVIdence, there was no 'WrItten contract' WIth Pro Temps. The dealIngs WIth Pro
Temps, over the course of about a year, were conducted through casual face-to-face
meetIngs, or over the telephone; and, accordIng to Ms. ROUIllard, the reqUIrements,
lImItatIOns, and understandIngs, as between OP AC and Pro Temps, were never formalIzed
In wrItmg. OP AC merely IdentIfied Its needs, from tIme to tIme, the partIes agreed on the
terms, and the relatIonshIp unfolded, WIthout the necessIty of any formal contract.
There was clearly a deSIre on the part of both OP AC and Pro Temps, that
Pro Temps should be treated as "the employer" of the agency workers for employment law
purposes (includmg the applIcatIOn of the collectIve agreement), and for that to be so, It
would be necessary to ensure that what was happenIng on the Job, and any related
documentatIOn (or lack of documentatIOn), would be consIstent WIth that legal
charactenzatIOn. And no doubt the umon IS troubled by such efforts. But as we have
17
already noted. there IS no collectIve agreement prohibItIon on "contractIng out", nor IS
there necessarily any breach of the collectIve agreement, If OP AC seeks to structure ItS
busIness relatIOnshIps m such a way as to escape the stnctures of the collectIve agreement.
That IS Just one of the factors that we may have to take Into account when evaluatmg the
eVIdence before us we have to consIder both the form and the substance of the
relatIOnshIps under reVIew
However, we thmk that It IS worth notIng that, In the Instant case, there IS
lIttle documentation of what transpIred as between OP AC and Pro Temps, or between
OP AC and the dIsputed employees. SImIlarly, we do not have much documentary materIal
pertaInIng to the relatIOnshIp between Pro Temps and the agency workers - eIther In
respect of the OP AC Job, or more generally
So far as we know there was no WrItten "contract of employment" between
the agency workers and Pro Temps; and except for some tIme sheets, (prepared on the
OP AC premIses, verIfied by OP AC personnel, then transmItted to Pro Temps for wage
payment purposes see below), and some pages entItled "Order Profile" for each agency
employee on the OP AC assIgmnent, we saw no general documentatIOn, settIng out the
workers' relatIonshIp wIth Pro Temps, or what Pro Temps expected from them, or did for
them, or VIce versa. Nor dId we actually see the format for whatever "employer-
employee" documentatIOn mIght eXIst at Pro Temps [for example' any applIcatIOn for
"employment" that the worker may have made; the recIprocal oblIgatIons of Pro Temps
and the worker; msurance arrangements (gIVen that the workers work on someone else's
18
work sIte, WIth someone else's tools and eqtIlpment), restrIctIOns on the partIes, If any;
any employee handbook or SImIlar document settmg out Pro Temps' polICIeS VIs-a-VIS
"Its" workers, the Records of Employment, If any, prepared for Employment Insurance
purposes, Worker CompensatIOn documentation, pay slIps or cheques, tax documents,
terImnatIOn notIces or sImIlar documents sometImes necessary under the Employment
Standards Act; and so on. Nor were we actually taken by a Pro Temps wItness through Ex.
5 - whIch was a bundle of "Order Profile" materIal kept by Pro Temps, m respect of the
OP AC asSIgnment.
Some of these matters were dIscussed m the oral eVIdence. But for the most
part, that descrIptIon was tendered WIthout reference to whatever documents mIght eXIst to
fill out the eVIdentIary pIcture, or to Illustrate what the WItnesses were talkmg about. In the
result, we are left to construct the busIness (and legal) relatIonshIp from the way m whIch
that relatIonshIp was described by these vanous WItnesses, rather than by reference to
concrete documentatIon. And m thIS respect the SItuatIOn IS somewhat dIfferent from the
case before ArbItrator Howe - where there was a formal agreement between OP AC and
the agency, and there were documents specIfymg the relatIonshIp between the agency and
"Its" workers.
ThIS IS not to say that the "paperwork" would necessanly control the legal
outcome, m any event, because, as noted, it may be necessary to dIStIngUISh between
"form" and "substance", and the "paperwork" may not match eIther the legal or the
operatIOnal realIty However, m Instant case, there really wasn't a lot of "documentatIOn"
19
to look at; so we were left to IdentIfy and characterIze the busmess/legal relatIOnshIps,
[rom how they were described by the persons who gave eVIdence
*
Over the course or several heanng days, we heard the testImony of 6
wItnesses Ahcla Collado, Anne ROUIllard, Greg V olkes, Alba POllICIcchlO, GeraldIne
Emanuel, and Ramamurthy (Venkaturama) DesarI.
*
Ms. Collado IS the current operatIOns manager of Pro Temps, who told us
somethmg of how that bUSIness works. Ms. ROUIllard was the OP AC manager of one of
the proJects III whIch agency workers (and some of OPAC's own employees) were
engaged In 2001-2002 Mr. V olkes IS a Human Resources manager wIth OP AC, who
explaIned how the agency came to be engaged. Ms. PolhcICCruO IS a clerk, and a member
of the OPSEU bargaInIng UnIt, who supervIsed the work of the agency workers, when they
were workIng at OP AC Ms. Emanel and Mr. DesarI were agency workers, who were
engaged to work on OP AC proJects, but are no longer assocIated wIth Pro Temps. Ms.
Emanuel has moved on. Mr DesarI worked at OP AC for a number of months In 2002,
then became a permanent employee of OP AC In August or September of 2002.
*
CredibIlIty, as such, IS not really an Issue. However, the testImony of each
of these wItnesses reflected hIs/her own perspectIve, and was somewhat hmIted by the
SItuatIon In whIch they found themselves dUrIng the relevant perIod.
*
20
Ms. ROUIllard had responsibIlIty for one of the proJccts m whIch the agency
workcrs (and somc ofOPAC's own employees) wcre engaged, and had dealIngs wIth Pro
Temps m thc ongoIng busIness arrangement. But It was not her deCISIOn to retaIn Pro
Temps; she had no supervIsory responsibIlItIes In respect of the agcncy workers, and she
SaId that she was "m and out" dUrIng the perIod of theIr engagement, so that she dId not
have a contInuIng connectIon WIth what they were dOIng, day to day, or WIth theIr
InteractIons WIth Pro Temps, If any Nor was she on SIte dUrIng the later stages of the
relatIOnshIp, when the agency workers moved on to another proJect. Ms. ROUIllard also
worked durmg the day, and had no Involvement WIth the nIght shIft, where a number of
agency personnel worked for some months, under the supervIsIon of a bargaInIng umt
employee (Ms. PollIcIcchIO)
Ms. Collado testIfied how Pro Temps' bus mess worked, In a general way
But she was not In the Toronto office of Pro Temps at the tIme of the arrangement WIth
OP AC, so that she had no dIrect knowledge of that relatIOnshIp, or ItS terms, or how It was
managed. She could only IdentIfy some busmess records, and explaIn how thIngs were
usually done - there beIng no "contract" detaIlmg the arrangements at, or WIth, OP AC
"Janet" IS the Pro Temps lIaIson person who did manage the relatIonshIp
WIth OP AC, and, It was SaId that Janet VISIted the OP AC premIses from tIme to tIme, and
had some responsibIlIty for the agency workers. Janet was the "contact person" for
OP AC, and, (we were told), for the agency workers, when they were workIng on the
21
OP AC premIses; and as such, "Janet" had a pIvotal role In both relatIOnshIps But "Janet"
dId not gIve eVIdence
Greg V olkes told us about the relatIonshIp wIth Pro Temps from a human
resources perspectIve, but he had no dIrect knowledge of what went on m the workplace.
By contrast, Ms. POllICIcchIO, a bargaInIng unIt employee, was dIrectly Involved wIth the
day-to-day work of the agency workers, supervISIng those employees and theIr work flow;
but she had no dIrect knowledge of the busmess arrangements between Pro Temps and
OP AC, or between the agency workers and Pro Temps.
Ms. Emanuel and Mr DeSaI, were agency workers, who described what
happened to them at OP AC, from theIr perspectIve, and also described theIr own
relatIOnshIp wIth Pro Temps. In addItIon, Mr DeSaI, was able to compare what It was like
workmg for OP AC as a temporary employee (regardless of who "the employer" was at the
tIme), and what It IS like now that he has become a permanent employee of OP AC
However, these workers were not pnvy to what passed between Pro Temps and OP AC,
moreover they were only two of the 64 agency workers who were engaged In the OP AC
work, over the course of a year
*
The overvIew below, IS based upon the combIned testImony of these SIX
witnesses, and for companson purposes (wIth the Howe Award, and wIth the other cases
to whIch we were referred), we have found It useful to record both what we know about
these bUSIness relatlonshIps, and also what we do not know
22
Finally, we mIght note that although the circumstances of the dIsputed
IlldIvIduals were not the same, (and mIght arguably show dIfferent degrees of
"attachment" to OPAC and/or Pro Temps), no one asserted that some of these agency
workers were "employees" of OP AC, whIle others were not.
In other words, neIther party sought to dIstmguIsh between these vanous
IndIVIduals based upon, for example, how many weeks of work they put m at the OP AC
premIses, as opposed to somewhere else; and, In fact, we know very lIttle about who else
they may have worked for, or when, or where, or on what terms. Instead, the "employee
status questIon" [ "who IS the employer?" ) was addressed, III respect of the group as a
whole, and theIr connectIon WIth OP AC as a group - notIng the dIfferences between
varIOUS members of the group (for example some agency workers worked for only a few
weeks, whIle others worked for a number of months, and at least two worked for about a
year), but focusmg on a global legal result that would apply to all members of the group
The unIon's posItion was that all of these agency workers were "temporary
employees ofOPAC", whIle OPAC says that none of them were; so that, In the result, we
have to determIne whIch global characterIzation IS nearer to the mark. AccordIngly, like
ArbItrator Howe, we were asked to choose between two dIscrete "employer" alternatIves.
OP AC or Pro Temps.
21
IV - The business settine: the relationship between OPAC and Pro Temps, and the
relationship of each of them to the temporary workers
The OP AC perspective how Pro Temps came to be engaged
In 2001-2002 OP AC was engaged m restructurIng Its organIZatIOn, III order
to meet the challenges of the marketplace OP AC was stIll dIgestIng Its relatIvely recent
"pnvatIzatIOn", and m Its new envIronment, OPAC dId not necessanly want to do thmgs
III the way they had been done before, when OP AC was part of the cIvil servIce.
Moreover, the management rIghts clause In the collectIve agreement, gave OP AC the
abIhty to restructure Its busmess, If It consIdered It adVIsable to do so
Among other thIngs, OPAC began to centralIze, m Toronto, some of the
functIOns that had been formerly performed at Its regIOnal offices, across Ontano The
locatIon of these offices dated from the tIme when OP AC was part of the MinIStry of
Finance, but OP AC deCIded that some of the functIOns that had been done III these
regIOnal offices, could be done more effectIvely at an office In Toronto at least on a
short term, "proJect baSIS"
One of the "proJects" In whIch OP AC was then engaged, was the
compIlatIon of tenant InformatIon, based upon data receIved, regIOnally, from local
commercIal and Industnal property owners. OP AC deCIded that thIS pIlot proJect should
be undertaken from the OP AC premIses at 90 Eglmton Ave E. m Toronto, rather than III
the local offices, where the data was collected.
24
The so-called tenant InformatIon proJect ("TIP") was expected to begm m
June 2001, and was to be completed by January or February 2002. Ms. Rouillard was the
proJect manager, and there were to be a number of OP AC employees Involved. But there
was conSIderable uncertaInty about how the proJect would unfold, how long It would take,
and how the work would be accomplIshed.
OP AC InItIally canvassed Its eXIstmg complement of regular and temporary
employees, to see whether any them wanted to relocate to EgIInton A venue, to work on
this tenant InformatIon proJect. But the company dId not get enough volunteers, and
ultimately deCIded to go through a temporary help agency, rather than hIrIng more
temporarIes ofIts own (i.e. rather than hIrIng more so-called "ArtIcle 5 employees").
AccordIng to Ms. ROUIllard and Mr V olkes, thIS deCISIOn was made by
senIor "operatIons management", and was motIvated by the uncertaIn duratIon of the
proJect, and the desIre to get the workers on the Job relatIVely qUIckly and flexibly Mr
V olkes explamed that It would have been more tIme consummg for the company to have
followed ItS normal practIce WIth respect to recrUItIng ItS own temporary employees, and
therefore the "operatIonal deCISIOn" was made to make use of a temporary help agency
Mr Volkes conceded In cross-exammatIon that the company could have
expanded Its own complement of temporary employees. ArtIcle 5 of the collectIVe
agreement contemplates the hIrIng of such temporary employees, and under the collectIve
agreement, the company retaInS conSIderable flexibIhty In thIS regard. There IS no
25
contractually prescribed hlrIng process. But that was not the dIrectIOn that he receIved
from operatIOns management.
Mr V olkes explamed that It was the operatIOns management of OP AC that
was responsible for the TIP proJect - not the Human Resources Department; and It was the
operatIons group that made the declSlon to use a temporary help agency The operatIOns
staff determIned what the proJect would need, and In thIS Instance, they dId not dIrect the
Human Resources Department to recruIt eIther temporary or regular employees for that
proJect.
AccordIng to Mr V olkes, the option and efficacy of recrUItmg Its own
temporary workers under ArtIcle 5, was dIscussed wIth the operatIOns people, but It was
not raIsed wIth the UnIon. Instead, It was determIned to engage the servIces of an
employment agency
By usmg an agency, OP AC derIved a number of advantages - IncludIng the
abIlIty to obtaIn workers relatIvely qUIckly wIthout makIng any commItment to them
about the duratIon of the engagement, and wIthout haVIng to do any of the paperwork
relatmg to payroll or employment matters. And of course, OP AC also derIved whatever
benefits flowed from not haVIng to meet the wage, benefits, senIorIty or Job prOVISIOns of
the OPSEU collectIve agreement; and from not haVIng to deal wIth the UnIon wIth respect
to these matters. It aVOIded (or so It hoped) the burdens ofbemg theIr "employer"
26
Ms. ROUIllard's testImony confimls that of Mr Volkes. Ms. ROUIllard
explaIned that, whIle she was responsible for the TIP proJect at Eghnton Avenue, she was
not responsible for the declSlon to engage a temporary employment agency She got her
dIrectIOn from her manager and from the VIce PreSIdent of property values although, as
she understood It, the Human Resources department was aware of the deCISIOn, and Ms.
ROUIllard belIevcs that the arrangement was dIscussed WIth Human Resources personnel at
the tIme. But like Mr V olkes, she confirmed that thIS was an operatIOnal declSlon, made
by more senIor management.
Mr V olkes testIfied that the agency workers were dealt WIth III a very
dIfferent way than Its own temporary "contract" employees, who were hIred from tIme to
tIme, under ArtIcle 5 of the collectIve agreement. These ArtIcle 5 "temporary employees"
fill m an applIcatIon form for OP AC, they are intervIewed and tested by OP AC, they are
formally 'hIred' dIrectly by OP AC, and once they have been hIred, they have personnel
records and personal mformatIOn that are maIntaIned by OP AC OPAC's own temporary
employees are patd dIrectly by OPAC, standard deductIOns are made and remItted by
OPAC (EI, CPP, Worker CompensatIOn, Employer Health Tax), and If there are
termInatIOn notIces or other employment-related documents to be gIVen to them, OP AC
prepares and delIvers that matenal. And OP AC applIes the collectIVe agreement to them,
as well.
With respect to the agency workers from Pro Temps, OP AC performed
none these functIOns, whIle Pro Temps mamtaIned whatever records i1 conSIdered
27
necessary for them. OP AC had none, except for some "tIme sheets" that are described
below OP AC dId provIde the agency workers wIth a computer pass-word, so that they
could do theIr work, USIng OPAC's computers, but that password was surrendered when
the agency workers left the OP AC assIgnment.
Mr Volkes testIfied that OPAC's own temporary employees are normally
engaged for a perIod of SIX months to a year He saId that there are not many three-month
contracts; and that the standard engagement IS normally for SIX months. However, It IS
clear that whatever the mItIal duratIon of such contracts may be, the contract can be
extended.
Mr Volkes testIfied that, despIte the umon's complaInts about the use of
agency workers, the company was stIll hmng Its own temporary staff for vanous tasks;
and that, when It dId so, the collectIve agreement was applIed to them. However, there IS
no doubt that the UnIon was troubled by the appearance In the workplace of batches of
temporary workers, obtamed through an agency, and also by OP AC's InSIstence that none
of those workers was caught by the terms of the collective agreement. The umon was also
troubled by the fact that those workers were (as the UnIon saw It) dOIng "bargaInmg UnIt
work" - sIde by sIde WIth OP AC employees. Indeed, as we have already mentIOned, a
UnIon complaInt InvolVIng another temporary help agency, was makIng ItS way to
arbItratIOn (to ArbItrator Howe), at the tIme that the Pro Temp arrangement was struck; so
It IS perhaps not surprISIng that m January 2002, the UnIon raIsed a new complaInt, then
filed a new grIevance, In respect to the Pro Temp arrangement.
28
Mr Volkes' response to the ulllon's new gnevance (the one now before us)
reads, m part, as follows,
Your e-maIl of January 23, 2002 regardmg the use of Temporary
agency employees workmg m the TIP program has been referred
to me for a response. A temporary agency that you referred to was
contracted by MP AC to prOVIde a number of Its employees to
work on a backlog of work at the TIP office. ThIS was done to fill
the short-tenn reqUIrement only ArtIcle 4 1 of the CollectIve
Agreement states that [management rIghts clause reproduced
above and omItted here] These workers are not employees of
MPAC and therefore are not covered by the CollectIve
Agreement I do not agree wIth your statement "these workers
are the same as the contract workers that MPAC has been hmng
smce December 1998 As such, they should be subject to the
prOVIsIOns m the CollectIve Agreement" If they were employees
of MP AC they would be hIred as eIther temporary or regular
employees but they are not. It IS the employer's posItlon that
contractIng the servIces of an employment agency to prOVIde
workers In a temporary baSIS is not a VIolation of the CollectIve
Agreement.
*
That was the ratIOnale that OP AC advanced at the tIme that the grievance
was filed, and that IS the pOSItIon the that OP AC mamtamed at the hearIng of thIS case
OP AC asserts that the agency workers are employed by Pro Temps not OP AC - so that
the prOVIsIOns of the collectIve agreement have no applIcatIon to them.
*
Accordmg to Ms. ROUIllard, Pro Temps was selected because she had seen
some advertIsmg materIal from that company, and because Pro Temps' Toronto offices
were located on Eglmton Avenue, close to the locatIOn where the TIP proJect was bemg
undertaken. Ms. ROUIllard told Pro Temps what she was lookmg for - data entry personnel
29
- and she outlIned nature of the work, the skIll set, and the tIme frames. Then Pro Temps
sent over as many workers as OP AC needed from tIme to tIme.
The flow of agency workers began m August 2001, accelerated mto the
wmter of 2001-2002, began to taper off when the TIP program was completed m the
spnng of 2002, then contmued, for some weeks, whIle the agency workers dId some other
backlog work. The engagement of agency workers ended altogether by August 2002.
In the result, the relatIOnshIp WIth Pro Temps, lasted for about a year
Ms. ROUIllard saId that she would call Pro Temps, whenever she ("we", as
she put It) needed to Increase the number of agency workers engaged m the TIP proJect,
and that when OP AC's needs dechned, she would notIfy Pro Temps, and that would be the
end of theIr employment.
OP AC neIther kept, nor needed to keep, any personnel InformatIon about
the agency workers. There were no applIcatIon forms, no payroll documents, no pay
cheques or remIttance documents (CPP, EI, Worker CompensatIOn) or notIces of
termmatIOn. Nor dId OP AC keep any personal InfOrmatIon for the agency workers (e.g.
addresses and phone numbers) If that InfOrmatIon was mamtaIned at all, It was kept by
Pro Temps. And In thIS respect, theIr SItuatIOn IS qUIte dIfferent from that of OP AC's own
temporary employees, hIred under ArtIcle 5
30
That saId, there IS really no doubt that the "work" that was beIng done by
the agency workers can be faIrly regarded as "bargamIng unit work" The kmds of dutIes
that were beIng perfonned by the agency workers for the TIP proJect, were fonnerly
performed at regIOnal OPAC offices, prIor to bemg centralIzed at the EglInton Avenue
locatIon, OP AC sought and obtaIned at least some of Its own employees to work on the
TIP proJect; and the same kInd of compilatIOn and recordIng of tenant IllfonnatIon
contmues to be done by OPAC employees at Its MIlner Avenue locatIOn In Scarborough.
It was the consolIdatIon of these dutIes as a pIlot proJect In the EgIInton
Avenue office that was new, and whIch generated the need for more hands at the Toronto
locatIon, and dunng the perIod under reVIew, permanent and temporary OP AC employees
were workmg sIde-by-sIde wIth the agency workers, performmg the reqUIred clerIcal and
computer tasks. Moreover, OP AC had InItIally canvassed Its own regular and temporary
staff seekIng volunteers for the proJect - reCeIVIng only a tepId response; and that IS what
prompted OP AC to consIder how they were gOIng to get the work done eIther by hlrIng
more ArtIcle 5 temporary employees, or, as eventually happened, by engagmg the servIces
of a personnel agency, to work wIth ItS own eXIstIng clerIcal employees. Furthennore, Mr
Volkes conceded that these reqUIrements could have been met by expandmg the
bargammg UnIt through the addItIon of some ArtIcle 5 "temporary employees", and that
OPAC's needs would have been met that way, Ifhe had receIved that InstructIOn from the
semor operatIOns management responsible for the TIP proJect. But he dIdn't.
11
In consequence, we do not thInk that there IS any doubt that the tasks m
whIch the agency workcrs were engaged, can be faIrly characterIzed as "bargaInIng UnIt
work"
However, It does not follow from that characterIZatIOn, that there has
necessarily been a breach of the collectIve agreement; because there IS nothmg m the
collcctIve agreement prohibItIng "contractmg out", nor IS there anythmg whIch precludes
the transfer of work ordmanly done by members of the bargammg UnIt, to persons who
have been excluded from the bargaInIng umt. Or to "pure outsIders" for that matter
The questIOn IS whether the agency workers really were "outsIders" m thIS
sense, or, as the UnIon claIms, temporary employees of OP AC - despIte the ObVIOUS
mtentIon of Pro Temps and OPAC that they not be regarded that way
The Pro Temps perspective, and how the OPAC arrangement unfolded
Pro Temps operates a busIness that supplIes personnel on a temporary basIs
to vanous other busIness organIzatIons. Pro Temps has been m busIness for about 17
years, and has four offices two III Western Canada and two m the Greater Toronto Area.
The office m Toronto supplIes personnel pnmanly for office purposes; whIle the
Misslssauga office supplIes mostly lIght Industnal personnel.
32
Pro Temps supplIes workers to a number of dIfferent busmesses. The
number of agency workers supplIed at anyone tIme, ebbs and flows, but m a typIcal
month, the Toronto office would supply personnel to about 20 dIfferent clIents. The
MIssIssauga office would typIcally supply personnel to about 40, mostly Industnal,
clIents. The workers supplIed to OP AC m thIS case, were sent through the Toronto office
*
Ms. Collado, IS the current operatIons manager of Pro Temps. Ms. Corraldo
testIfied that Pro Temps mamtams a pool of IndIVIduals, who are aVaIlable to be sent to
clIents, on the clIent's request, to meet the clIent's IdentIfied needs. Ms. Collado explamed
that Pro Temps has a "data base" or regIstry of mdIvIduals whom It IS prepared to send to
clIents, upon request, and on terms to be agreed upon - InItIally between the clIent and Pro
Temps, and then wIth the prospectIve worker, who IS asked whether slhe IS prepared to
work at that SIte, for the stIpulated wage.
There IS no eVIdence that there IS a standard rate for the work or the
workers that Pro Temps provIdes, and, as we understand It, the wage rate (plus the Pro
Temps' "mark up" - see below) IS worked out, on a case by case basIs, as between Pro
Temps and the clIent, dependmg on the nature of the work and the state of the labour
market. Then Pro Temps asks the prospectIve worker whether slhe IS prepared to work at
that locatIOn, and on that basIs. There IS no oblIgatIOn to take an assIgnment; but once the
worker accepts the offer, the worker works for the clIent, at the clIent's locatIOn and under
the clIent's general dIrectIOn and supervISIon, and wIth whatever regularIty and hours of
11
work, that the chent reqUIres. From thIS perspectIve, the "workplace" for the agency
workers, IS the workplace/premIses of the clIent.
Ms. Collado saId that the IndIVIduals on ItS regIstry lIst do not reqUIre much
educatIon or traInIng - or even much abIlIty to communIcate beyond a baSIC level. She
agreed wIth UnIon Counsel that, basIcally, what Pro Temps does, IS "round up people on
short order, WIth baSIC skIlls", and then send those IndIViduals to clIents who need short-
term baSIC help That IS the nIche that Pro Temps fills for those busInesses who use Pro
Temps' servIces, and that was the nature of Pro Temps' arrangement WIth OPAC,
Before gOIng on the regIstry lIst, Pro Temps gIVes prospectIve regIstrants a
test to determme theIr SkIlls - keyboardIng, book keepmg, or whatever Pro Temps may
also conduct IntervIews and do reference checks. Pro Temps then contacts those
IndIVIduals when a clIent says that It needs workers of that kmd. The clIent IdentIfies ItS
labour needs, then Pro Temps trIes to fill those needs from ItS registry
When the prospectIve regIstrants approach Pro Temps to find work, they
apparently SIgn some sort of applIcatIon form. We do not know what that form prOVIdes
for, but accordmg to Ms. Collado, the document says nothIng about what the worker WIll
be paId, or when or where the worker WIll work. The applIcatIon form does IdentIfy a
three month restrIctIon on acceptIng permanent employment from the "clIents" Workers
are not supposed to SOlICIt or accept such offers; and If that happens, the clIent IS supposed
to pay a fee.
34
We do not know how long such workers may stay m the Pro Temps "pool",
or how much "turnover" there IS; moreover, It appears that the obJectIve of the agency
workers who gave eVIdence before us, was not necessarily to work "for Pro Temps", as
such, (despIte Its role as theIr ostensible "employer") but rather Just to seek employment
(successfully In Mr Desan's case, because he was eventually taken on as a permanent
employee by OP AC) No doubt that IS why there IS a "rule" that the agency worker IS not
supposed to accept full-tIme employment wIth the clIent for a perIod of three months; and
the chent IS supposed to pay a fee If that occurs. There would be no need for such "rule",
unless some number of agency workers were seekIng more permanent work, and some
number of Pro Temp clIents were Inc1med to give It to them. Indeed the fact that there IS
such rule, suggests that regIstrants may not be lookmg for a "career" wIth Pro Temps.
As we understand It, there IS no obhgatIon on the worker to work through
Pro Temps, or to work exclUSIvely through Pro Temps, or to work for the partIcular clIents
that Pro Temps IdentIfies from tIme to tIme, or to commIt to work at any gIVen tIme or
place; and workers are free to seek work elsewhere - although Ms. Collado satd that she
would not know whether the workers on the Pro Temp lIst, were workmg elsewhere. The
workers are not oblIged to keep Pro Temps mformed of theIr actIvItIes, and, apparently, It
IS not unusual for workers to be regIstered at several agenCIes at once That was the case
for the two agency workers from whom we had eVIdence; and If there was some "rule" or
"practIce" by whIch workers would be struck from the lIst If they don't respond to Pro
Temps' requests (or to some number or kmds ofrequests), then we dId not hear of It.
1)
On the eVIdence before us, no "wages" or other mOnIes are earned or paId,
except when a worker on the lIst, IS actually "workmg" for a clIent. Moreover, If
"workIng" means applYIng oneself (mentally and physIcally) to a partIcular set of tasks
that are of value to the person prescribmg those tasks, who benefits from havmg them
done, then the dIsputed mdIvIduals do not "work" for Pro Temps at all, in this sense' they
"work" for the clIent. Because It IS the clIent that determmes what work has to be done,
and that tells the worker when and where and, If necessary, how to do that work (see
below) Furthermore, whIle a person on the lIst may be free to accept or reJect a partIcular
assIgnment from a particular clIent, once s/he has accepted that assIgnment, s/he IS
expected to show up for work, on a regular basIs, Just like any other "employee", and s/he
IS expected to perform the work that the clIent dIrects hImlher to do, and like any
"employee" s/he can "qUIt" If s/he wants to
In other words, the element of electIOn applIes only at the pOInt where the
worker accepts or rejects the Job After that, the wage-work equatIOn IS establIshed, and
the worker follows the work routIne prescribed by the clIent - untIl the Job IS over, or the
worker qUItS, or, presumably, eIther the clIent or the agency wants the worker removed, or
moved somewhere else. We say "presumably" because we do not know If that actually
happened, and If so why or how
Ms. Collado saId that there were more than 5000 names on Pro Temps lIst,
and she InItIally suggested that Pro Temps was "the employer" of all 5000 of them.
Moreover, If that characterIzatIon were accurate, then that would make Pro Temps a maJor
36
Ontano employer; and Pro Temps would also have a very substantIal payroll, (i.e. If the
amounts payable m respect of all of those IndIVIduals were combIned) SImIlarly, the
comIngs and gOIngs of these groups of Pro Temp "employees" would be qUIte sIgnIficant,
If VIewed cumulatIvely There could be large termmatIOns or layoffs, dependIng on how
qUIckly the many clIents' needs geared up or wound down, and whether the workers
qUIckly moved on to somethmg else, under the Pro Temps umbrella.
However, Ms. Collado added that those IndIVIduals on the lIst were not
necessarIly all "workIng for us" at any partIcular tIme; and It IS clear that they could, In
fact, be workmg for other entItIes, or gettIng work through other agenCIes, at the same
tIme that they were on the Pro Temps lIst. That was the case of Mr Desan, who
apparently stayed on the Pro Temps lIst, but actually got work through another agency,
between stInts With OP AC
Be that as It may, SInce no work IS exchanged and no "wages" referable to
Pro Temps, are paId by or through Pro Temps, except when the worker IS actually workIng
for a Pro Temps clIent, we thInk that It IS faIr to say that the regIstrants will not dIsplay at
least thIS classIcal IndIcator of "employment" (workIng for wages), except when they are
supplYIng then labour, to someone to whom Pro Temps dIrects them, and for present
purposes, we need not decIde whether they can be "employees" of Pro Temps, by sImply
bemg on the lIst.
17
It suffices to say that, on the eVIdence before us, merely bemg on the lIst IS
not IndIcatIve of actually workmg, or any terms of work, or any economIC exchange, or
even any obligation to engage m work; nor (on the eVIdence before us) are there any
contmumg benefits coverage or other arrangements WIth Pro Temps that tIe the worker to
Pro Temps when they are not actIvely workIng (as there sometImes are for workers In a
typIcal employment settIng, who are perIOdIcally laId off and then recalled from such
typIcal "employer") Moreover, beIng on a lIst, does not mean that the workers cannot be
workmg for, or even be "employees" of, someone else, at the same tIme (like Mr Desari).
The rate that IS charged to a clIent In respect of an IndIVIdual referred to
work at the clIent, IS an all-mclusIve hourly rate, whIch depends upon the nature of the
work aSSIgnment. In the case of the OP AC proJect, the rate charged by Pro Temps was
$1705 per hour
Ms. Collado explamed that the agency workers were paId (by Pro Temps)
at $11 00 per hour, and th?" there was a 55% mark-up ($605 per hour) that was retaIned
by Pro Temps for servIces rendered.
Hence, $17 05/hr was paId to Pro Temps, and $11 OO/hr made Its way, as
wages, to the agency workers.
The agency workers are paId dIrectly by the agency, rather than by the
clIent; and we were told that from the wage amounts paId to those workers, Pro Temps
38
makes deductIons In respect of mcome tax, CPP, and EI, whIch Pro Temps remIts to the
desIgnated governmental or regulatory authorIty In Mr DesarI' s case, hIS wages were
paid to hIm, after deductIOns, by dIrect depOSIt Into hIS bank account.
The amount paId by Pro Temps to the agency workers does not mclude
anythmg m respect of "benefits", except for 4% m respect of vacatIOn pay Pro Temps
prOVIdes no "benefits" for these workers (i.e. no lIfe or other Insurance, no SIckness or
dIsabIlIty benefits, no leave arrangements - SUbsIdIzed or otherwIse, etc), and It IS not
clear whether they are entItled to, or get, severance or termInatIOn notIce or pay, statutory
holIday pay, and so on [see the dIscussIOn of statutory holIdays below] Nor (on the
eVIdence before us) does Pro Temps supply any tools, eqUIpment, or tramIng.
It appears that what the worker bnngs to Pro Temps on hIslher own, Pro
Temps then makes aVailable to ItS clIents for an hourly fee, IncludIng "mark-up", and the
worker then earns hIs/her wages. There IS no eVIdence of any "career development", or of
any "employment perks" assocIated wIth the worker's relatIonshIp wIth Pro Temps.
It also appears that, to the extent that the worker acqUIres vaned
experIence, It IS acqUIred from the clIent not from Pro Temps - WhICh acts as a "mIddle
man" In that regard, selectIng and sendIng workers to one clIent or another However,
..
there IS no eVIdence that Pro Temps seeks to develop employee skIlls by selectively
sendIng them to one clIent rather than another or, for example, by entrustIng them to
'\ l)
...
mcreasmgly demandmg assIgnments, or arrangmg for them take courses to upgrade theIr
SkIlls, and marketabIlIty (factors that are sometImes mentIOned In cases of thIS kmd)
If overtIme IS worked, we were told that the IndIVIdual IS paId at tIme and a
half "by Pro Temps", after 44 hours worked In a week (somethIng that IS found m the
Employment Standards Act) However, Pro Temps passes that charge along to the chent
organIzatIon at tIme and one half the rate bIlled to the clIent; and It IS not clear that thIS
payment In respect of overtIme IS dealt WIth any dIfferently than payments for regular
wages, that are also mVOIced penodlcally, and precIsely track the hours of work put Ill,
and recorded at OP AC The actual need for overtIme hours - like the OrIgIn of the work,
the kmd of work, and the hours of work - are all determmed by the client and ItS needs.
In the OP AC case, we have no mformatIon on how overtIme was
admInIstercd - that IS, whether employee consent was sought, by whom, or WIth what
Involvement, If any, by Pro Temps. [Note that under the Employment Standards Act,
VarIOUS agreements may be needed, as between "employer" and "employee", If "overtIme"
IS to be worked at the behest of the employer] Indeed, on the OP AC aSSIgnment, we do
not know whether the agcncy workers were actually reqUIred to work any overtIme at all -
and If so, who asked or dIrected them to do so, or how It was arranged.
ExhibIt 4 contams a lIstIng of agency workers who worked for OP AC m
2002, together WIth the total number of hours worked by cach IndIVIdual, and there are
some dIfferences between the total numbers of hours worked, even for employees who
40
worked on the same 800 AM to 400 PM day ShIft, dUrIng a perIod contaInIng the same
number of calendar weeks, wIth the same number of possible workdays. Thus, Ms.
Emanuel and Ms Ebnshawrashoob both worked on the 8 00 AM - 4 00 PM day ShIft,
from January 2, 2002 to March 29, 2002 (13 calendar weeks), but Ms. Ebnshawrashoob
worked 407 75 hrs, whIle Ms. Emanuel only worked 359.25 hours. And m the case of the
two Bouttchenko famIly members, who worked from January 14 to March 15 (about 9
weeks each) one worked for 311 5 hours, whIle the other worked for 319 hours. But we
do not know what accounts for these dIfferences.
*
In summary then, both m terms of straIght-tIme wages and overtIme (if
there was any), there IS an economIc flow-through from the clIent, to Pro Temps, then to
the agency workers, In exact relatIOn to the number of hours needed by the clIent, worked
by the worker, and reported to and recorded by the clIent or the worker hImself; and In thIS
respect, (as the UnIon sees It) Pro Temps can be seen as the "condUIt" by WhICh mOnIes to
pay for the work prOVIded to the cbent by the worker, are funnelled back to the worker In
the form of wages for theIr labour -less the deductIOn of the Pro Temps mark-up
There IS no eVIdence that Pro Temps has to "reach Into ItS own pocket" for
anythmg -- or more accurately' how the 55 % [$6.50 per hour] "mark-up" IS subdIvIded or
allocated to whatever costs Pro Temps Incurs, or servIces that Pro Temps proVIdes. The
payments forthcomIng to the agency workers, track the documented hours of work that
they put III at OP AC, for whIch OP AC IS then InVOIced by Pro Temps.
41
The workers mvolved m the OP AC referral, recorded theIr own hours on a
tIme sheet that was then verIfied by an OP AC employee, and forwarded to Pro Temps for
wage calculatIOn purposes. ExhibIt 13 IS an example of such tIme sheet. It has a space for
"tIme m", "tIme out", "total hours worked", the worker's SIgnature, and the date. There IS
also a space entItled "Manager"
For the OP AC asSIgnment, the "Manager" (on ExhibIt 13) IS lIsted as Mary
Lou San Andres. Ms. San Andres IS a senIor clerk and an employee of OP AC, who was
responsible, (along wIth Ms. POhCIcchIO) for supervIsmg the work of the agency workers
whIle they were workmg at OP AC She was also responsible for verIfYIng the work hours
of the workers whom she supervIsed, and perhaps, others. We put It that way (" perhaps
others. "), because It appears that Ms. San Andres verIfied and sIgned off on the hours
that agency workers put m on the evenIng ShIft, even though It was Ms. POIICIChhlO,
another OP AC employee, who supervIsed the agency workers on that ShIft. Ms. San
Andres worked on the day ShIft.
Ms. POIICIcchIO testIfied that on the evenIng ShIft whIch she supervIsed, the
employee tIme sheets were venfied and SIgned off, by Mary Lou San Andres or by Ms.
ROUIllard. Ms. ROUIllard confirmed that she dId SIgn such sheets, to venfy the attendance
and hours of the agency workers. These sheets were sent off to Pro Temps, and OP AC
would then receIve an InVOICe from Pro Temps for the hours that the workers had put In.
42
ExhibIt 13 stIpulates that "THIS REPORT MUST BE COMPLETED
ACCURATELY AND IS SUBJECT TO AUDIT" We do not know by whom such
"audIt" would be conducted, (i.e. Pro Temps or OPAC) or whether there ever was such an
audIt. However, agency workers and OP AC employees both SIgn the document, and,
presumably, they are both expected to do so accurately
*
Ms. Emanuel testIfied that she had worked for a company for 29 years, but
that thIS firm had gone bankrupt, so that In 2001, she was unemployed and lookmg for
work. With that In mmd, she regIstered WIth a number of temporary personnel agencIes,
Includmg Pro Temps. She sent a resume In to Pro Temps, gave references, had an
IntervIew, dId a typIng test and, also, perhaps, a test about book keepIng. Ms. Emanuel
could not recall for sure.
Somewhat later, Ms. Emanuel was called by Pro Temps and asked whether
...
she was prepared to work at OP AC for $11 00 per hour She SaId that she was.
Ms. Emanuel saId that she trIed to negotIate WIth "Janet" (the lIaIson
person from Pro Temps) for a hIgher wage rate, but she was told that that was what they
were paYIng. When asked In cross-eXamInatIOn why she dId not try to negotIate a better
rate with OP A C, Ms. Emanuel replIed that OP AC was not her employer - Pro Temps was.
4'
Ms. Emanuel knew that the work assIgnment was temporary (although her
work penod was extended, a lIttle), and she said that she regarded Pro Temps as her
employer
*
Mr Desan's aSSOCIatIOn wIth Pro Temps arose when he saw an
advertIsement by Pro Temps for data entry clerks. Mr Desan made applIcatIOn, and, like
Ms. Emanuel dId a keyboardIng test, and was put on a lIst. Shortly thereafter, he was
placed WIth OP AC - for whom he worked for about 7 months, m two stInts, separated by a
two month gap.
Mr DesarI had no other work referrals VIa Pro Temps, and, In partIcular, no
work referrals from Pro Temps dUrIng the two month perIod that he was between stInts
WIth OP AC Dunng that gap, he obtaIned work, at another busIness ("clIent"), VIa a
referral from another employment agency WIth whIch Mr DesarI was also regIstered at the
tIme.
Mr DesarI and Ms. Emanuel both testIfied that whIle they were workIllg at
OP AC, they regarded Pro Temps as theIr employer - In Mr Desan' s case, untIl he took up
permanent employment WIth OP AC In September 2002. AccordIng to Mr DesarI, he had
three employers that year Pro Temps, the "SpherIon agency" that had found hIm work
when he was between stInts WIth OP AC, and OP AC Itself, when he was hIred on
permanently In or about September 2002, after completmg hIS second perIod as an
"agency worker", workIng for OP AC
44
*
As we have already noted, Pro Temps assIgns a lIaIson person ("Janet") to
mom tor Its relatIonshIp wIth ItS clIents; and, accordIng to Ms. Collado, It IS normal for that
lIaIson person to contact the clIent at least once a week - eIther In person or by telephone
Workers are told that Pro Temps IS "theIr employer", and that If there are any workplace
Issues, they are to contact Pro Temps about them. The clIent IS likewIse told to contact Pro
Temps If there are any problems from ItS pOInt of VieW And, as noted, the workers are
also told that they catmot become an "employee" of the clIent, for at least three months.
Ms Collado saId that If there are any "dIscIplIne problems" (for example, If
an employee was late for work), then Pro Temps could sWItch work assIgnntents or
termInate the employee. But as Ms. Collado put It "we see what the clIent would like us
to do" Accordmg to Ms. Colladao, Pro Temps does not contradIct the clIent's wIshes;
and In the case of the OP AC arrangement, (wIth a couple of exceptIOns to whIch we wIll
return In a moment), we have very lIttle eVIdence that thIS kmd of problem ever arose - or,
If It dId, how It was dealt WIth, and by whom.
We do not know (i e there IS no dIrect eVIdence) whether any agency
employee assIgned to OP AC was termInated or reaSSIgned for poor performance, lateness,
or otherwIse Nor do we actually know whether Pro Temps ever moved an employee from
the OP AC assIgnntent to another one, at the request of the employee, or at the request of
OP AC, or because Pro Temps Itself thought that the person should be moved to some
other place for some reason of ItS own.
4')
One of the OPAC documents records that an agency worker "baIled", but
we do not know why she dId that, or where she went, or how that sItuatIon was dealt wIth
(for example how much notIce she gave, and to whom, and whether Pro Temps promptly
sent her to another chent) We do know that when Mr Desan finIshed hIS first stInt wIth
OP AC, he got work somewhere else, through another agency, whIle stIll remaInIng on Pro
Temps hst. We do not know whether any documentation accompanIed the endIng of hIS
first stInt workmg at OP AC
Pro Temps has no routme or contmumg presence In the clIent's workplace;
and Ms. Collado dId not know how often "Janet", the Pro Temps lIaIson person, was
actually there. Nor dId she know what commumcatIons passed between Janet and OPAC
The OPAC assIgmnent occurred before Ms. Collado came to the Toronto office; so she
had no knowledge of the detaIls of that relatIOnshIp, except what could be gleaned from
whatever documents there were, and how thIngs are normally done by Pro Temps.
We dId not hear from "Janet"
Ms ROUIllard testIfied that If there was a "dISCiplInary Issue" that had to be
addressed, the agency would be notIfied. But, agam, thIS does not seem to have ansen In
any sIgmficant way, and the one concrete InCIdent mentIoned In the eVidence (an
employee talkmg on the telephone too much) was resolved m accordance WIth OP AC's
WIshes. Ms. ROUIllard testIfied that on that occaSIon, OP AC was happy WIth the
46
IndIVIdual's work and, as she put It, "we dIdn't want to let her go", so the matter was
dIscussed as between OP AC and Pro Temps, and the worker remaIned on the Job
As Ms Collado explamed, Pro Temps accepted what the clIent wanted to
do In such Instances, and (on the eVIdence before us, at least), It IS the clIent who severs
the relatIonshIp, or not, m accordance wIth the clIent's needs and assessment of the
sItuatIon, and It was the clIent In that Instance that ultImately decIded what would be done
wIth the talkatIve employee. To the extent that It was a Jomt deCISIOn, Pro Temps played a
more paSSIve role, acqUIeSCIng In the clIent's wIshes, and we have no doubt that If OP AC
had wanted the worker removed, then that IS what would have happened - regardless of
whether there was "Just cause" (obJectIvely or legally) for that worker to "lose her Job"
It IS also reasonable to Infer that the agency workers would apprecIate theIr
contIngent status - especIally If they hoped to get full tIme work WIth OP AC, as some of
them later dId, and one would not expect them to cause trouble, or need much "dISCIplIne"
- especIally gIven the routIne nature of what they were dOIng, and theIr IntegratIon WIth
OP AC employees. So It IS not surprISIng that there IS lIttle eVIdence of "dIscIplIne"
*
It also seems logIcal to Infer that the way In whIch an agency worker
performs for a clIent, should affect whether slhe IS sent out agaIn, or to some other clIent.
It seems reasonable to Infer that "good workers" would stand out, and receIve at least the
"reward" of more referrals. However, no one from Pro Temps actually saId that thIS was
the case, and, so far as we know, the workers get no other reward for good servIce. Thus
47
we do not know whether bemg a good worker, gets someone more work - as opposed to
somethmg sImpler, like bemg wIllIng to accept assIgmnents, however, they work out.
Of course, there IS no way for Pro Temps to actually know whether the
employee IS satIsfactory (from a partIcular clIent's pOInt of VIew, or generally), except to
the extent that the clIent shares that mformatIOn. whether the worker met the standards and
expectatIOns of the clIent, or, alternatIvely whether there was some "cause" for tennInatIOn
of the relatIonshIp For m thIS sense, the agency worker IS "workIng" for the clIent, and
only the clIent IS In a posItIon to detennme whether hislher performance IS satIsfactory
And gIVen what the agency workers do, there are no real "promotIOnal opportumtIes" at
Pro Temps (or If there are, we dId not hear of It)
*
Mr ROUIllard testIfied that Janet dId VISIt the OP AC premIses from tIme to
tIme, although Ms. ROUIllard was not clear how often, or whether there was much
mteractIOn WIth the agency workers on the premIses at that tIme, or what the nature of that
InteractIOn mIght have been. Ms. ROUIllard testIfied that there was contact WIth Pro
Temps two or three tImes per month, or perhaps once per week; but that she (Ms.
ROUIllard) dIdn't know whether Janet Interacted WIth agency employees at such tImes.
Ms ROUIllard dId recall Janet attendmg, around Chnstmas, to delIver a
ChrIstmas basket for the agency workers; and Ms. ROUIllard also recalls seemg Janet
talkmg to agency workers, when she (Janet) was on OP AC's premIses. However, Ms.
ROUIllard dId not know what that was about. And when Ms. ROUIllard was recalled to gIve
48
reply eVIdence, some months later, she agaIn testIfied that she herself spoke to Janet once
a week or every week or two, by telephone, to ensure that everythIng was gomg
smoothly
*
Alba PolhcIcchIO was one of the OP AC bargaInmg UnIt employees
responsible for supervISIng the agency workers In the performance of theIr daIly tasks. As
we understand lt, Ms. POllICIcchIO was the sole OP AC employee representatIve
responsible for overseemg some 30 agency workers who were assIgned to an "evenIng
ShIft" that was put In place by OP AC and Pro Temps, from the begInnIllg of January to the
end of March 2002.
There IS no eVIdence that any managerIal person from OP AC was on the
premIses m the evenmgs - whIch perhaps IndIcates the degree of supervIsIOn that was
actually reqUIred for these workers (or the OP AC employees for that matter) The need for
an evemng ShIft, and the hours to be worked, were IdentIfied by OP AC OP AC IdentIfied
the work to be done and when It would be done.
Ms. PollIcIcchIO testIfied that dUrIng the three months that she presIded
over the 30 agency employees on the evenIng ShIft, she had no dealIngs WIth Pro Temps
personnel at all, and she never saw anyone from Pro Temps VISIt the evenIng ShIft. Ms.
PolhcIcchIO SaId that Ifthere had been a "dIscIplInary problem", she would have raIsed the
Issue WIth Mary Lou San Andres - then a semor clerk at OP AC, who supervIsed agency
workers on the day ShIft. But accordIllg to Ms. POhCIcchIO, that Issue never arose
49
*
Geraldme Emanuel, was an agency worker who was engaged to work at the
OPAC premIses for about seven months, from August 13, 2001 untIl March 29, 2002.
Ms. Emanuel testIfied that, dUrIng her tIme WIth OP AC, she only recalled seeIng Janet
once, and on that occaSIon, Janet was gOIng to the office to speak to Ms. Rouillard.
As we understand It, Janet's role was to lIaIse WIth the clIent, so that any
VISIt that she made to OP AC premIses, mIght have focused on the clIent relatIonshIp,
rather than any mvolvement WIth agency workers, however, we do not have her
perspectIVe on how many VISIts she made, or for what purposes, or what InteractIOn there
may have been WIth, or In respect of, agency employees. Nor dId we hear from Ms. San
Andres, who seems to have had a more actIve role to play than Ms. POlIClCChIO
Ms. Emanuel testIfied that that there was very lIttle contact WIth Pro Temps
while she was workIng for OP AC. But she dId recall one such occaSIon, when there was a
questIOn about the workers' entItlement to payment for statutory holIdays (whIch may
sometImes be a legal entItlement under the Employment Standards Act, and can therefore
be seen as one ofthe possible "burdens" of beIng an "employer").
As Ms. Emanuel recalled It: shortly before ChrIstmas, whIle she was
workmg at OP AC, she was engaged In conversatIOn WIth some fellow workers at the
lunch table, and she commented (based upon her experIence WIth her former employer),
that the agency employees who were beIng "laId off' from OP AC over the ChrIstmas
50
break, should nevertheless be gettIng holIday pay for the statutory holIdays that would fall
dUrIng thIS penod. It was Ms. Emanuel's understandIng that employees In those
CIrcumstances were entItled to statutory holIday pay And that IS what Ms. Emanuel saId
to her coworkers. Ms. Emanuel also observed that because many of the agency workers
were new ImmIgrants, they dId not, (In her vIew), understand theIr "rIghts" In the
workplace.
Ms. Emanuel testIfied that she later receIved a telephone call from Janet,
who was not at all pleased WIth Ms Emanuel's suggestIOn that the workers were entItled to
pay for statutory holIdays AccordIng to Ms. Emanuel, Janet SaId that she (Ms. Emanuel)
"had a bIg mouth", and that It was none of Ms. Emanuel's bUSIness whether the workers
were entItled to holiday payor not. Janet told Ms. Emanuel that she should not have
raIsed thIS Issue WIth her coworkers.
We dId not hear Janet's SIde of the story; and we do not know whether the
workers m questIOn were actually entItled to, or were actually paId, statutory holIday pay,
(by someone) Nor do we know whether there was any documentatIOn WIth respect to thIS
Chnstmas "layoff' - or WIth respect to any other perIOdIC or permanent 'severance' of an
agency worker from the OP AC Job (recall that on the OP AC assIgmnent, a number of
workers came and went and came back agaIn)
However, we thmk that It IS reasonable to mfer that It was OP AC that
deCIded when the work would be mterrupted and would recommence; because OPAC's
))
own employees were mtImately mvolved In the proJect. The Pro Temp workers, were an
auxIlIary force, whIch Increased or decreased In accordance wIth OP AC's assessment of
Its needs, so the rhythm of theIr work, was determmed by OP AC And the agency workers
worked SIde by SIde wIth OP AC's own employees.
In a normal employment relatIonshIp, an employer wIll Issue records of
employment (e g. for EI purposes) and may also gIve some sort of WrItten notIce of
termmatIon, recordIllg the reasons for the layoff and the expected duratIOn. An
employment relattonshIp usually carnes wIth It, varIous kInd of "paperwork", congruent
wIth the varIOUS oblIgations that are put upon the employer as a matter of law, or busmess
practIce. But If such documents eXIst for the agency workers, none were produced In
eVIdence. Thus, we do not know how Pro Temps dealt WIth the legal reqUIrements of
beIng an "employer" - or how Its dealmgs WIth the agency workers fitted wIthm that
framework of those "employment" responsibIlItIes, (if any) Or what the workers are told
about that, gOIng m (for example. whether, If they work for months, as some of them dId
for OP AC, they WIll get paId for statutory holIdays - the Issue that Ms. Emanuel testIfied
about).
*
Mr Desan worked at OP AC for a total of about seven months, In two stmts
(one on the day shIft and one on the evemng shIft), before beIng hIred by OP AC on a
permanent employment baSIS In late August or early September 2002 Mr Desan testIfied
that no one from Pro Temps ever VISIted the rught shlft, that he had no contact WIth Pro
52
Temps dUrIng hIS tenure, and that he had never seen anyone from Pro Temps at the OP AC
office.
*
Ms. Collado and Ms. Rouillard both testIfied that If an agency worker was
gomg to be late reportmg for work, or was Ill, slhe was supposed to contact Pro Temps,
whICh then passed that InformatIon along to OP AC SImilarly, If an agency employee
wanted a day off, then slhe was to tell Pro Temps - whIch, once agaIn, would pass the
\
mformatIOn on to OP AC As the ostensible "employer" of these IndIVIduals, Pro Temps
was supposed to get InfOrmatIOn from the agency workers about what was happenIng at
work.
That IS what the workers were told to do, and that IS what Ms. ROUIllard
saId was expected of them. CommunIcatIons about employment matters were to be
channelled through Pro Temps - the nomInal employer
However, we do not know how regularly or strIctly thIS InstructIOn was
followed, because Ms. PollIcICchIO testIfied that OP AC was also mformed dIrectly of such
thIngs by the employee - a proposItIon that was confirmed by Mr Desan Nor do we
know whether Pro Temps ever exercIsed any independent authority to grant or refuse tIme
off, WIthout clearIng It through OP AC first. For after all, the only entIty whIch could be
IllconvenIenced by the worker's absence was the clIent - not Pro Temps. Because the
work that the agency worker was expected to do was OPAC's work, done to OPAC's
deadlInes, and III hIslher absence, that work would have to be done eIther by OPAC's own
')'\
employees, or by other agency workers. Work flow was the concern of OPAC, not Pro
Temps.
In the ordmary course, one would expect that workers would need tIme off,
from tIme to tIme; and the dIfferent total work hours (on Ex. 4) for employees sImIlarly
sItuated (In terms of avaIlable work hours and work days), suggests that thIS must have
happened on some occaSIOns. But we have lIttle eVIdence III that regard. Ms. Emanuel
saId that she was never late or needed any specIal tIme off; so she had no occaSIon to
"-
contact anyone. With respect to her vacatIOn, It was worked out wIth Mary Lou and Janet;
so, to that extent, Pro Temps and OP AC were both Involved In the decIsIOn makIng.
There IS no reason to reJect the agency workers' assertIOn that when these
kInds of sItuatIOns arose, they contacted OP AC as well as theIr nomInal employer; but
theIr oblIgatIOn, (and the expectatIOn) was that they would funnel such requests through
Pro Temps. Nevertheless, It appears that, from the worker's perspectIve, they thought that
It was approprIate to Involve both Pro Temps and OP AC In thIS kInd of commumcatIOn.
In other words, even though the agency workers SaId that they regarded Pro
Temps, (the entIty that paId them), as theIr "employer", they conSIdered It approprIate to
mform the entIty for whom they were workmg from day to day, and whIch expected them
to amve at work as scheduled.
54
The antIcIpated end of Ms. Emanuel's early 2002 stInt wIth OPAC
(January - March), was around the tIme of sprIng break; and Ms. Emanuel saId that she
had planned to take a two-week vacatIOn trIp at that pOInt. However accordIng to Ms.
Emanuel, OP AC needed her to come back to work at OP AC, for a perIod of tIme, after her
vacatIOn. Ms. Emanuel saId that Mary Lou San Andres from OP AC had asked her to
return after her vacatIOn, and Janet telephoned to say that OPAC wanted her back.
So Ms. Emanuel agreed to come back: Mary Lou had dIscussed It, and
Janet had approved It. AccordIng to Ms. Emanuel that was one of the very few contacts
that she had wIth Janet or Pro Temps, over the seven months that she worked at OPAC
(between August 2001 and the end of March 2002)
*
The bUSIness relatIOnshIp between OP AC and Pro Temps subSIsted for
about a year (from roughly August 2001 to August 2002), and over the course of that
relatIonshIp, some 64 agency workers were referred to work at OP AC However, the
duratIOn of theIr tenure varIed qUIte consIderably, and m some cases encompassed more
than one stInt, WIth a gap In between.
The first handful of agency workers amved on OP AC's premIses III the late
summer/early fall of2001, and a further, larger, groupmg started m January 2002 These
workers were needed for the Tenant Information (TIP) project whIch began III the summer \
of 2001 and was completed m March 2002 However, by March 2002, OP AC also
needed supplementary forces to clear up another mformatIOn back log; and thIS work, too,
')')
\ went to a cOmbInatIOn of OP AC's employees and agency workers, supplIed by Pro
Temps. ThIS second backlog of work was done by the end of August 2002, at whIch pOInt
the last of the agency workers departed.
Over the course of about a year, therefore, about 64 workers passed
through OPAC's organIZatIOn, dOIng work for OPAC, USIng OPAC's eqUIpment, under the
supervIsIon of, and m conJunctIon wIth, OP AC employees. However these agency
workers worked m dIfferent time frames, and for dIfferent lengths of tIme, m accordance
(we mfer from Ms ROUIllard's testImony) WIth the ebb and flow ofOPAC's needs.
UnIon Counsel submItted that the tenure of the agency workers could be
revIewed and compared by workIng backwards from the raw, work-order documents filed
WIth the board (ExhibIt 5 and ExhibIt 7 - although thIs pattern IS also eVIdent on ExhibIt
4) On that baSIS, UnIon Counsel noted that of the 64 workers that were sent to OP AC,
over the course of Its dealIng WIth Pro Temps, some 9 workers worked for more than one
stInt (i.e. the ongmal aSSIgnment ended, there was an Interval, and the IndIVIdual went
back to work for another penod of weeks). He also pOInted out that 9 workers started In
the late summer of 2001, 44 came on board m January 2002, and another one started In
February 2002 - the larger mflux correspondIng III tIme to the establIshment of the
evemng ShIft over WhICh Ms. POIICIChhIO presIded. ApproxImately 20 agency workers
appear on the records startmg In May 2002. And by the end of August 2002, the OP AC
Job was done, and all of the agency workers were gone.
,
56
From the mdIvIdual employee perspectIve, though, the length of these
assIgnments WIth OP AC was qUIte varIable. Some of the mdIvIduals worked for Just a
few weeks, whIle two of them worked two stInts, totallIng 12 months of work each.
Drawmg agaIn from Ex. 5 and ExhibIt 7, Umon Counsel submits that 10 of the 64
referrals worked at least SIX months, 8 worked about three months, 11 worked two months
(or a bIt more), and 17 worked for 6-8 weeks.
Some 26 agency workers were aSSIgned to the day ShIft exclusIvely; whIle
33 agency workers worked on evenIngs exclusIvely; and five IndIVIduals dId both day
shIftS and evenIng ShIftS m the course of dIfferent stInts wIth OP AC However, SIllce the
work was bemg done with OP AC computers, on premIses controlled by OP AC, It was
OP AC that deCIded whether ItS work would be done "on days", and whether an evenIng
ShIft was needed. And when an evenIng ShIft was establIshed, Pro Temps sent along
~
another batch of workers to meet that need, and OP AC asSIgned Ms. POIICIcchIO to the
evenIng ShIft, to supervIse theIr work.
Of the 64 agency workers who passed through the OP AC aSSIgnment,
seven of them, mcludmg Mr Desan, were eventually hIred by OP AC as permanent
employees.
The same VarIabIlIty appears on the summary sheets for 2002 (ExhibIt 4) -
although It IS not entIrely clear to us how the total hours of work match up WIth the work
days and ShIftS (hours scheduled vs. hours worked) On the one hand, there are workers
)7
'"
like Arlene Calma, who, (accordmg to Ex. 4) put m 927 hours (the eqUIvalent of about 25
weeks work), or Afredo Visleno who put m 988 hours (the eqUIvalent of roughly 27 weeks
work), whIle on the other hand, there are workers like the two Boutchenkos, who worked
roughly 8 weeks each, and Bernardo OrtIOla, who only worked for about 2 weeks.
ThIS mformatIOn can be compared WIth Mr V olkes' observatIOn that
ArtIcle 5 temporary employees [of OP AC] can have contracts as short as 3 months, but
that 6-month temporary contracts are more normal.
We do not know why some workers were engaged for longer perIods than
others, but as we have already noted, there IS no eVIdence that anyone was "fired" for poor
performance, and replaced by someone else. We do thInk It IS faIr to say that these
mdIvIduals would not have been workmg If there were no OP AC work for them to do, and
..4"-
that when the work Increased or decreased, so dId theIr likelihood of staYing on or movmg
on. LikewIse, It IS reasonable to mfer that some workers may have decIded to leave on
theIr own.
However, for any mdIVIdual worker, we are unable to say whether theIr
stay was ended because of a lack of work, or because they dIdn't "work out", or because
they themselves made the deCISIon to leave ("baIled") to look for somethmg dIfferent, or
because Pro Temps decIded that she should move on. We sImply do not know But as we
have already noted. these IndIVIduals were only makIng $11 OOlhr, and (so far as we are
aware), they were not oblIged to work at, or commIt to, the OP AC assIgrmIent for any
58
gIven length oftImc. They were therefore frce to "baIl" [qUIt] and look for work elsewhere
or to accept another Pro Temp referral, or to accept a referral through another agency, as
Mr Desafl dId after hIS first stInt wIth OP AC What the employees could not do, was
accept permanent employment wIth OP AC for at least three months.
*
In our VIew, the most helpful pIcture of how the relatIonshIp unfolded on a
day-to-day basIs, comes from Alba POIICIcchIO, a bargamIng unIt employee who
supervIsed the agency workers (along wIth Mary Lou San Andres, who was then the
"semor clerk") and gave whatever dIrectIOn was reqUIred. Her testImony was
supplemented by that of the agency workers themselves, and, on balance, was conSIstent
WIth that of Ms.RoUIllard, who, because of her more general managerIal responsibIlItIes
was somewhat more detached, and had a more panoramIc VIew
Mary Lou San Andres seems to have had more responsibIhty for the
agency workers than Ms. POlICIcchIO, but Ms. San Andres dId not gIve eVIdence. Nor dId
we hear from the Pro Temps lIaIson person ("Janet") - who, In any event, (on the
eVIdence), was not around very much. So the pIcture of what was happenIng "on the
ground" was paInted for us by Ms. POhClCChIO - the workers' OP AC supervIsor - and by
the workers themselves.
*
Ms. POlICIcchIO IS a clerk who has been employed by OP AC (or Its
government predecessor) for many years; and dUrIng the perIod under reVIew, she had the
responsibIlIty of supervIsmg the agency workers - especIally those 30 agency workers
)9
who were assIgned to the evenIng ShIft, when regular OP AC management would not be
around. Her eVIdence therefore pertaIns to both the day workers, and the evenIng workers
who were under her supervIsIon, once the evemng ShIft was establIshed.
Ms. POIICIcchIO confirmed that the work In questIOn was routIne copy
typIng and data entry work, of the kInd that bargaInIng unIt employees typIcally
performed. The agency workers' Job was to "key m" InfOrmatIOn from documents that
were forwarded to Toronto, by ordmary mail, from OPAC's regIonal offices, where such
work was formerly performed and the documents were collected. In thIS respect, the
agency workers who began to come on board m August 2001 (then later, In IncreaSIng
numbers) were dOIng the same work, and the same kInd of work, as the core of temporary
and permanent OP AC employees, who were working at EglInton A venue on the TIP
proJect. That was also the case m the sprIng and summer 2002, when agency workers were
used to clear up another data compIlatIOn backlog that OP AC wanted to elImInate.
The agency workers worked sIde-by-sIde wIth regular OP AC employees,
and to some extent were IntermIngled wIth them, such that an outSIde observer would not
be able to dIStInguISh whIch workers were "employees" of OP AC and whIch workers
were arguably "employees" of someone else. Ms. ROUIllard confirmed that, m her OpInIOn,
employees worked better when there IS a "buddy system", and that IS the way that the
work was organIzed (in practIce, If not formally) at EglInton Avenue. Mr DesarI
dIscussed the SItuatIon m the same way' there was a buddy system, In whIch agency and
60
OP AC employees worked together, so that the regular OP AC employees helped out the
agency workers, when that was reqUIred.
However, because the work Involved faIrly sImple and routIne clerIcal
tasks, very lIttle traInmg was reqUIred. The agency workers were expected to be able to
type, and to have some general famIlIanty wIth a computer before beIng assIgned to the
clIent, so that when they amved at EglInton A venue, all they had to do was familIanze
themselves wIth the software, the formats and the templates used by OP AC, then to
become familIar wIth the documents from whIch the InfOrmatIOn for "copy typIng"
(inputtmg) was drawn. We were told that thIS would not take very long; but to the extent
that any kInd of "trammg" or "famIlIarIzatIon" was reqUIred, It was done by OP AC or
OP AC employees - who were also aVaIlable, on an ongomg baSIS, to help out the agency
workers WIth any dIfficultIes that they encountered.
Ms. Collado, the operatIOns manager from Pro Temps, testIfied that she had
no Idea whether OP AC reqUIred the agency workers to be famIlIar WIth the "Oracle"
computer program, but that If It dId, such traInIng dId not come from Pro Temps. Ms.
ROUIllard testIfied that OP AC traIned the agency workers In the use of Oracle and Lotus,
to the extent that It was necessary, and that the programmers from Oracle came In to
Impart the necessary InformatIon.
Ms. POIICIcchIO testIfied that OP ACs permanent and temporary clerks were
traIned together along WIth the first batch of agency workers, then OPAC's employees, In
61
turn, dId whatever traInIng was necessary We were told that some of the permanent
OP AC employees stayed a ltttle later, one evemng, to famIlIarIze the IncomIng agency
workers wIth what they would be domg - but agaIn, It appears to us that such group
traInmg was mImmal, and that for the most part, any traInIng that was necessary, was done
"on the Job" through mteractIOn between the agency workers, and the regular OP AC staff.
In practice, there does not seem to have been much need for traInIng, SInce
the typmg and data entry tasks where relatIvely routIne -- whether they were beIng done
by agency workers, or by OPAC's own staff. Moreover, OPAC's regular staffremamed
on the scene In order to explaIn thmgs, or to work through any problems that were
encountered. Ms. POIICIcchlO testified that, WIth respect to work assIgmnent, the agency
workers were not treated any dIfferently than the regular employees, except that she (as
theIr supervIsor) was a bIt more cautIOUS about the type of work that was gIven to them.
We were told that the background documentatIOn that the agency workers
had to type mto OP AC's computer, was funnelled to Toronto, from the regIOns, by
ordmary maIl. That maIl was opened by OP AC employees, who then batched the
documents and put them on a shelf, to WhICh those employees and agency workers both
had access. The bundles were then retrIeved by the persons (OP AC employees and agency
workers) who were workIng WIth them.
To the extent that there was any actual "work aSSIgnment" It was done by
Mary Lou San Andres, an OP AC employee, and later, on the evenmg ShIft, by Ms.
62
POhCIcchIO However, we were told that the agency workers knew where the bundles of
documents were put, they knew how to retneve them, and they generally knew how to
transfer the mformatIOn from the documents to the OP AC database, by Inputtmg the
mformatIon usmg a keyboard and followmg the prescribed format.
To repeat: thIS was faIrly sImple and straIghtforward copy typmg. The
agcncy workers possessed that skill, prIor to bemg assIgned to the OP AC Job, and If they
encountered problems, theIr co-workers helped them out. And to the extent that they
reqUIred a lIttle extra familIanzatIOn WIth Oracle or OP AC formats, that was done by
OP AC employees or by persons engaged by OP AC
We were told that OPAC employees (and Ms. POIICIcchIO as supervIsor),
dId any streamIng of the work that was to be dIrected to the agency workers, and that only
OP AC employees dId what was described as "process control" - whIch we understand to
bc "quality control" checkmg the accuracy of the work that was beIng done by the agency
workers, and makIng sure that the data was beIng entered properly
*
Once the evenIng ShIft was establIshed, there was a new Influx of agency
workers, and, as Ms. POIICIcchIO put It: "Mary Lou took care of the days, and I took care
of the nIghts" Ms. PObClCChIO was the only "supervIsor" on the evenIng ShIft. Ms
POIICIcchIO testIfied that there were no permanent OP AC clerks on the evemng ShIft - only
herself and 30 agency workers, but It appears that on both the day and evenIng ShIft, those
workers were largely self-dIrected rctrIcvIng the bundles of InfOrmatIOn from the
61
centralIzed shelf, then returnIng to theIr workstatIOn to enter the InfOrmatIOn In the
prescribed format. Once they were famIlIar wIth that format (i e. the screens and templates
used by the OP AC software), the agency workers could work faIrly Independently
As on the day ShIft, Ms. POIICIcchIO SaId that the agency workers on the
evemng ShIft kept theIr own 'hours of work' records. She speculated that If she had
encountered a dIscIplmary problem (for example If the agency workers were talkIng too
much rather than workmg) then she would talk to Mary Lou (then the senIor clerk on the
day ShIft) about It; but she never encountered such problems. When new faces appeared
from the agency, they were tramed as necessary and Integrated mto the eXIstmg
workgroup When the work declIned, they departed.
When some agency workers departed, Ms. POIICIChhIO wrote employment
reference letters for them, because she (unlike Pro Temps) was m a positIon to know first
hand, how they had worked out at OP AC On at least one occaSIOn Ms. POIICIcchIO also
expressed a negatIve OpInIOn about an agency worker, whom she SaId OP AC should not
hIre for a permanent or temporary pOSItion.
Ms. POlICIcchIO saId that If there were "Job postIngs", It was understood
that agency workers could not apply for them, but would be treated like "outSIders" for
such Jobs. As she put It, they would be treated like applIcants from "off the street", and of
course, they were not supposed to accept employment WIth the clIent In any event, for at
least three months. Nevertheless, as we have already noted, some seven agency workers
64
(includIng Mr Desan) dId go on to become regular employees of OPAC Presumably,
after three months, they were permItted to do that; but, In fact, we do not know how
strIngently the "three month rule" was applIed. Nor do we know what Influenced the
length of a sttnt - whIch IS to say, what Influenced whether workers got to the three month
pomt, when they could accept a full tIme Job, If one were offered.
Ms. POhCIcchlO'S deSCrIptIOn of the work and work settIng, was confirmed
by Ms. Emanuel and Mr Desan.
Ms. Emanuel IndIcated that they were traIned on the Job, to use the Oracle
system for data entry, by eIther Mary Lou San Andres or Ms. POIICIcchIO, and that If she
encountered problem she was helped out by a co-worker who sat beSIde her She
confirmed that when she needed work, she went to a centralIzed shelf to obtaIn a bundle of
documents.
In summary then, while It IS true to say that OP AC employees controlled
the assIgrunent of work to the agency workers, It IS also faIr to say that the assIgrunent was
largely routIne, through the pre-selectIon of the tasks that were bemg gIVen to those
workers, and that work was subsequently checked for qualIty control purposes by OP AC
employees. That ''work'' ongInates WIth OP AC; the workflow and work oblIgatIOns are
defined by OPAC, and the work outcome (the standard of performance to whIch workers
are expected to adhere) IS stIpulated by OPAC, WhICh mOnItors the qualIty of the work
performed, ("process control") usmg ItS own employees, In thIS sense, the agency
6)
workers are both physIcally and operatIOnally (vIs-a-vIs work flow) Integrated and
mterrnmgled WIth OP AC employees.
It IS also worth notIng that the "work" In questIon IS not "work" WhICh IS
ancIllary to OPAC's normal operatIOns (as, say, plumbIng repaIrS mIght be OP AC IS not
In the plumbIng busmess); nor does such work Involve any sIgnIficant mdependent
expertIse (like, for example, the servIces WhIch mIght be supplIed by IT consultants called
In to reprogram OPAC's system, or to traIn ItS workers) It IS not even ancIllary In the
sense that "secunty" would be, If we were dealIng WIth an outSIde agency prOVIdIng
secunty guards (like the Corps of CommISSIOnaIres, for example) On the contrary, the
work m questIon IS pretty routIne copy typmg, of the kInd that used to be done by OPAC's
own employees In the regIOns, and was done, to some extent, by OPAC's own employees,
whIle workIng on the TIP proJect.
In all matenal respects, day-to-day control of "the work" WhICh the agency
workers are paId to do, IS retaIned, (as It must be) by OPAC, and ensured by scrutInY that
IS applIed by OP AC employees to what the agency workers were dOIng, whIle workIng In
OPAC's establIshment. That ''work'' that the agency workers are dOIng, IS "OPAC's
work", on OPAC's computers, collatmg and enterIng OPAC mformatIon, In the manner
prescribed by OP AC There IS no Independent dIscretIon mvolved, nor does It reqUIre
much Illdependent Judgment, skill, or problem solVIng abIlIty The agency workers were
told what to do, and they dId It.
66
In that regard, we reIterate that except for the talkatIve agency worker, we
have no dIrect eVIdence of any agency worker ever sufferIng any consequence for the non-
performance, or Inadequate performance of the dutIes to whIch s/he was assIgned by
OP AC We heard some vague suggestIOns about the power to "dISCIplIne" However, In
respect of some 64 employees, engaged for varIOUS perIods, over the course of a year, we
have no eVIdence of that ever happenIng. All we heard about was the talkatIve worker,
whom Ms. ROUIllard thought was a good worker, who should be kept on. So she was.
Perhaps that was because Pro Temps dId an effectIve Job In pre-screenmg
the workers, to ensure that all of the agency workers sent to work at OP AC, had the
reqUIred clencal skIlls to perform satIsfactorily and wIthout fuss. Perhaps It was because
the work In questIon was relatIvely routme and reqUIred lIttle skIll In any event. Perhaps
the agency workers knew how precarIOUS theIr SItuatIOn was, and acted accordIngly We
declIne to speculate. But III the result, despIte some speculatIOn In the eVIdence about
"dIscIplIne" or tardIness, or "poor work performance", we had very lIttle eVIdence m that
regard. What can be said, IS that, as In the case of the agency worker who spent too much
tIme on the telephone, It was OPAC who effectIvely deCIded what was "too much", and
what the consequence for the worker would be.
*
Mr DesarI's deSCrIptIOn of the work settIng largely parallels that of the
other WItnesses. He SaId that there was about a week of tramIng or famIliarIzatIOn, then
OP AC employees were on hand to sort out any problems that he encountered. That was
the case m respect of hIS first stInt on the TIP proJect, and also the second stInt, where he
67
was workIng wIth dIfferent kmds of mformatIon. In both cases the work was faIrly
routme, but dIstributed, as necessary, VIa supervIsors from OP AC
*
Mr Desan became a permanent employee of OP AC In about September
2002. He remams m a clerIcal posItion at OP AC He saId that there was not much
dIfference In the kind of work that he now performs, from what he dId when he was
workIng through the agency
AccordIng to Mr DesarI, the work m WhICh he IS now engaged mvolves
dIfferent data and dIfferent kinds of traInIng, and whereas, before, some 90% of hIS work
was "keyboardIng", now It IS about 80 %. There IS more checkmg now, he added. Before,
he dId not do the "process control", OPAC workers dId that.
Mr DesarI made formal applIcatIon for a Job at OPAC, and was
mtervIewed for the pOSItIOn. He was gIven a typIng test, and was subsequently hIred. None
of that had happened before (vIs-a-vIs OPAC), while he was workIng through Pro Temps.
When Mr Desan applIed for and secured a permanent Job WIth OP AC,
then, In hIS mInd, OP AC became "the employer" As Mr Desan saw It, Pro Temps was
hIS employer up to September 2002, and OP AC was hIS employer thereafter; and dUrIng
the two month mterlude between hIS stInts WIth OP AC, when he got a Job for a month or
so through another temporary agency named "Sphmon", then that agency was hIS
"employer"
68
In thIS regard, Mr DesarI's perceptIOn matches that of Ms. Emanuel, who
saId that she had not been hIred by OP AC, and, In fact, that she had been told that she was
not permItted to take a Job at OP AC for three months. And of course, both employees had
been told by Pro Temps that Pro Temps was "the employer", and Pro Temps was the
entIty WhICh paId them - albeIt wIth funds obtamed from OP AC, precIsely matchmg the
hours put m "at", and verIfied by, OP AC
Mr DesarI testIfied that now that he IS a permanent employee of OP AC,
there IS more varIety' he IS exposed to other departments and areas, and he has addItIonal
clencal responsibIlItIes. He also does some dIfferent kmds of work, IncludIllg some mInor
correspondence And the "framework" of hIS relatIonshIp IS dIfferent. He IS now clearly
part ofOPAC's organIzatIon, and so regards hImself He dId not look at It that way before.
*
We do not know how representatIve Mr DesarI and Ms. Emanuel are of the
agency workers, smce we do not know the personal SItuatIOn of the 64 dIsputed
IndIVIduals other than m theIr dealIngs WIth OP AC - that IS, whether they routInely went
from Job to Job, dependmg on Pro Temps to find them work; or whether, like Ms.
Emanuel and Mr DesarI, they dId not get many aSSIgnments through Pro Temps, and In
Mr Desan's case accepted a permanent opportumty WIth OPAC, when he got the
opportUnIty
What can be saId IS that neIther of the workers who gave eVIdence had a
strong attachment to Pro Temps, or were commItted to a career WIth Pro Temps. Mr
(1)
DesarI got only one assIgnment through the aegIs of Pro Temps - the OP AC assIgnment
(In two stmts), that happIly for hIm, matured mto a regular Job Ms. Emanuel testIfied that
the only other Job that she got through Pro Temps was a two-week assIgnment to a
PIckerIng busmess WhICh was too geographIcally remote to be travellmg to dUrIng the
wInter, and dIdn't last beyond two weeks. Other than the OP AC aSSIgnment, Pro Temps
played lIttle role In her employment search or career
Thus, whIle both workers were on the Pro Temps lIst dUrIng the perIod
under reVIew, theIr actual labours were mostly devoted to OP AC, and theIr InteractIOn
WIth Pro Temps was pretty mInImal except of course, for the perIOdIC wage payments
that they receIved from Pro Temps, once Pro Temps had tallIed the work hours that they
spent at OP AC, and had deducted Its "mark up" TheIr attachment was at least as strong
(the UnIon would argue "stronger") to OP AC - where they showed up for work every day,
and worked under OP AC supervIsIOn, - as It was WIth Pro Temps, who paId over to them
a portIOn of the mOnIes receIved from OP AC
By way of contrast and comparIson. thIS IS not a case where "X" spends a
few days here, and a few days there, and a few days somewhere else - commg and gomg
as s/he WIshes and as Pro Temps may determIne. If organIzatIOnal connectIon IS measured
m a pragmatIc and functIOnal way, m relatIon to the work, the work settIng and an
establIshment, then at least for the two agency workers who gave eVIdence, there was a
clear connectIon to OP AC for a tIme perIod that was not at all "casual" Both of them
worked for OP AC for longer than the three months that Mr V olkes saId was the mInImUm
70
(if somewhat unusual) tenure for ArtIcle 5 temporarIes, and both of them worked, m total,
for longer than the 6 months that Mr Volkes SaId IS more usual or customary for ArtIcle 5
temporary employees.
V - The Position of the parties restated
As we have already mentIoned. thIS case IS a repnse of the one that was
argued before ArbItrator Howe - where, In fact, the partIes took qUIte SImIlar posItIons,
and relIed upon many of the same cases that were put before us.
There, as here, OPAC had obtaIned the servIces of some "agency workers",
who dId "bargamIng UnIt work", on Its own premIses, mtermmgled WIth ItS own
employees, and there, as here, a questIOn arose as to who was "the employer" of these
workers, for the purposes of the collectIve agreement.
There, as here, the UnIon argued that OP AC was the "employer" of the
dIsputed IndIVIduals, whIle OP AC replIed that "the employer" was the personnel agency
whIch had sent those IndIVIduals to work at OP AC
There, as here, both partIes took the arbItrator through the so-called "seven
factor test" that was enuncIated by the Ontano Labour RelatIons Board In York
Condominium Corporation [1977] O.L.R.B Rep 645 - an approach that parallels the one
adopted by the Supreme Court of Canada In City of Pointe Claire vs Syndicat des
Employees Professionels les et de Bureau ,sc€'tion Local 57, Labour Court et al. mis en
71
cause (1997), 146 D L.R. (4th) 1 (where the Court declIned to mterfere WIth a findIng that
certaIn workers were employees of the mUnIcIpalIty, rather than the personnel agency that
had sent them to work at the mUnIcIpalIty)
And there, as here, the "commercIal facts" appear to have been largely
uncontested, but the partIes urged the board to draw dIfferent conclusIOns from those
facts. That IS why the UnIon submIts that we should reach the same result as ArbItrator
Howe dId In the case before hIm, whIle OP AC submIts that the Howe case IS both
dIstmgUIshable and was wrongly decIded.
*
In thIS earlIer case, ArbItrator Howe, summanzed the UnIon's pOSItIon thIS
way'
19 In hIS submIssIons In chIef on behalf of the UnIon, Mr
Bohuslawsky contended that the Employer VIolated the Agreement
by usmg agency employees under ItS dIrect supervIsion and control
to perform work normally performed by bargaInIng UnIt
employees. SInce the Agreement does not expressly restrIct the
rIght of the Employer to contract out bargamIng UnIt work,
contractIng out IS not per se ImpermIssible. The same IS true of
"contractIng In", whIch IS a subcategory of contractIng out.
However, for the subcontractIng to be valId, the Employer must
surrender control over the work, and there must be a real
functIOnal separatIon between bargamIng UnIt employees and the
agency employees. Those tests were not met m thIS case.
20 It IS mherently destructIve of the Agreement and the
bargaInIng relatIonshIp for the Employer to utIlIze agency
employees on ItS premIses to perform bargaInIng UnIt work under
the Employer's control WIthout those employees beIng subJect to
the Agreement. In partIcular, the negotIated wage structure
becomes vIrtually meanmgless. ArbItrators seek to dIStIngUIsh
substance from form, and gIve lIttle weIght to external formalItIes
such as the agency's payment of wages to the employees and
remIttance of admmIstratIve payroll deductIOns. Where employees
72
hIred through an agency become mdlstIngUIshable from bargaInIng
UnIt employees, the normal remedy IS to treat them as bargaInmg
umt employees for the purposes of the Agreement.
21 The three tests whIch have been applIed m IdentIfYIng the
true employer are the Montreal Locomotive test, the York
Condominium test, and the organIzatIOn test. The foundatIon of all
of those tests IS the rIght of day-to-day supervIsIon of the
employees.
22 After reVIeWIng the eVIdence, Mr Bohuslawsky submItted
that Instead of entenng Into an InvalId subcontract, the approprIate
course of actIOn would have been for the Employer to hIre a
temporary employee pursuant to the applIcable prOVISIons of the
Agreement.
23 The Umon seeks a declaratIon that the Employer vIolated
the Agreement, and that dUrIng the tIme she worked on the
Employer's premIses Ms. Hasulo was an employee of the
Employer for the purposes of the Agreement and was entItled to
the benefits and other terms and condItIons of employment for
whIch the Agreement prOVIdes. The UnIOn also seeks an order that
the Employer pay to the Umon the amount of unIOn dues reflectIve
ofMs Hasulo's bargaInIng UnIt status for that penod.
24 The cases relIed upon by the UnIon mclude Don Mills
Foundation for Senior Citizens v S.E.LU Local 204 (1984), 14
L.A.C. (3d) 385 (Ont. Arb Bd.) (P C PIcher), Riverdale Hospital
v C UP.E, Local 79 (1973), 7 L.A.C. (2d) 40 (Ont. Arb Bd.)
(SchIff), Bristol-Myers Pharmaceutical Group v CA. W, Local
1538 (1990),15 L.A.C. (4th) 210 (Ont. Arb Bd.) (ShIme), Radio
Shack v Us. WA. Local 6709 (1994), 44 L.A.C. (4th) 69 (Ont.
Arb Bd.) (Beck), Lakehead Regional Family Centre v
o.P.S.E.U, Local 707 (1991),24 L.A.C. (4th) 23 (Ont. Arb Bd.)
(Solomatenko), R. WD S. U Local 1065 v Coca-Cola Bottling
Ltd. (1997), 61 L.A.C. (4th) 347 (N.B Arb Bd.) (ChrIstIe), St.
Jude's Anglican Home v B CN U (1996), 53 L.A.C. (4th) 111
(B C. Arb Bd.) (Larson), Saskatchewan Wheat Pool, Re ( 1998),
70 L.A.C. (4th) 335 (Can. Arb Bd.) (SmIth), Emu Plastics Ltd. v
UFCW Local 175 (1999),82 L.A.C. (4th) 397 (Ont. Arb Bd.)
(DIssanayake), and Panabrasive Inc. v Us. WA., Local 8777,-
f19991 O.L.A.A. No. 240 (Ont. Arb Bd.), (JoachIm).
71
And he summarIzed the OP AC's posItIon as follows.
25 In hIS submIssIons of behalf of the Employer, Mr LIttle
contended that the Instant case Involves a "run of the mIll" agency
sItuatIon and an entIrely approprIate contractIng out. There IS no
prohIbItIon agamst contractmg out In thIS Agreement, and ArtIcle
1 02 provIdes that there are no representatIOns, warrantIes, or
condItIons that affect the rIghts of the partIes save and except those
specIfically set out m the Agreement. That provIsIOn expressly
restrIcts the authorIty of an arbItrator to Imply terms or to read In
ImplIed oblIgatIons Ontario Public Service Employees Union and
Ontario Property Assessment Corporation (discharge grievance of
Ian Morrison), unreported award dated December 20, 2000
(MacDowell)
26 There are two lInes of authOrIty m thIS area. The lIne of
authOrIty relIed upon by the UnIon starts WIth Re Board of
Governors of Riverdale Hospital and C. U.P.E., supra, and bUIlds
from there, plaCIng prImary emphasIs on the Issue of day-to-day
control. The second lIne of cases starts by applYIng the seven
cntena suggested by the Ontano Labour RelatIOns Board In
L.I UNA., Local 183 v York Condominium Corp No 46, [1977]
O.L.R.B. Rep. 645 (Ont. L.R.B), and then looks at all of the
Clfcumstances to determIne the approprIate labour relatIons result.
The first Ime of cases places an undue emphasis on day-to-day
control, whIch mevItably leads to the conclUSIOn that the clIent IS
the employer That approach IS unappealIng because It Ignores the
fact that staffing agencIes are part of the labour relatIOns
landscape. They are legItimate busInesses that fulfil a legItImate
role. If a UnIon WIshes to ensure that only bargamIng UnIt
employees are gOIng to perform bargaInmg UnIt work, It must
negotIate a collectIve agreement provISIOn whIch prohibIts
contractIng out. Under the York Condominium case law, there IS a
presumption that the agency IS the employer, but that presumptIon
can be rebutted If there are good labour relatIons reasons to do so
All seven of those cntena, Includmg "control" when vIewed more
globally, pomt to the agency beIng Ms. Hasulo's employer m the
mstant case.
27 The cases relIed upon by the Employer Illclude Metro-
Calgary & Rural General Hospital, District No 93 v U.NA.,
Local 121 (1988), 3 L.A.C. (4th) 265 (Alta. Arb Bd.) (BeattIe),
Lincoln County Board of Education v C.U P.E., Local 1442
(January 9, 1990), Brent Member (Ont. Arb Bd.), Carecor Health
Services Inc. v o.NA. (1992), 30 L.A.C. (4th) 391 (Ont. Arb
74
Bd.), (Knopf), The Bay and Retail, Wholesale (USW A) (grievances
relating to London Fog, Nectar and Posting), unreported award
dated Apnl 3, 1997 (WhItaker), Eq]{;onbridge Ltd. v. CA. W.
Local 599 [2002 CarswellOnt 1906 (Ont. Arb Bd.)], unreported
award dated May 13, 2002 (Brent); Ford Motor Co of Canada v
United Plant Guard Workers of America, Local 1958 (1981), I
L.A.c. (3d) 141 (Ont. Arb Bd.) (MacDowell), Toronto Star
Newspapers Ltd. v Southern Ontario Newspaper Guild, Local 87
(1990), 16 L.AC. (4th) 347 (Ont. Arb Bd.) (Solamatenko), and
Educational Support Staff Assn. v Waterloo Region District
School Board, [1999] O.L.A.A. No. 670 (Ont. L.R.B ), unreported
award dated August 23, 1999 (Howe).
*
These are baSIcally the same posItIons that the partIes adopted In the mstant
case although the present proceedIng was launched by the UnIon as a "polIcy gnevance",
whIle the case before ArbItrator Howe, arose from IndIVIdual employee claIms.
*
In the mstant case, OP AC also stresses the arms-length relatIonshIp
between OP AC and Pro Temps - whIch, counsel notes, runs an Independent bUSIness,
servIng a varIety of clIents, of whIch OP AC IS only one. Moreover, m counsel's
submIssIon, OP AC had a bona fide busmess reason for seekIng an aUXIlIary work force' a
temporary backlog, consIstmg of two dIscrete bundles of work ("proJects"), that had
cropped up In connectIon wIth OPAC's bUSIness reorganIzatIOn, and had to be completed
by the fall of 2002.
ThIS bUSIness reorganIzatIon was perfectly understandable m lIght of the
company's (then) recent "prIVatIzatIon", and m counsel's submIssIon, It was well wIthIn
7')
the company's broad "management rIghts", as enuncIated In ArtIcle 4 01 of the collectIve
agreement, to reorganIze the way that It dId thIllgS. However, these mItIatIves created an
unantIcIpated bottleneck In the work flow, that, as It turned out, the company could not
easIly address by usmg Its own forces - although It dId canvas Its own employees before
"gomg outSIde" In thIS respect, counsel pomts out that OP AC workers were not depnved
of work opportunItIes; rather, theIr dIsmterest was among the thmgs that mfluenced the
company to seek the assIstance of an outSIde agency
In OPAC's submIssIOn, there was no IntentIOn to undermIne the "mtegnty
of the bargammg umt" (whatever that phrase mIght mean), and In any event, there IS no
collectIve agreement lImItatIon on haVIng outSIders domg "bargaInIng UnIt work" In the
last round of bargaInmg the UnIon sought such lImItatIOn, but It was unsuccessful m that
regard, and, m consequence, It IS not a breach of the collectIVe agreement to "outsource"
work that mIght have been done by bargaInIng unIt members. And In counsel's
submIssIon, the umon should not be able to do IndIrectly, what It could not achIeve
through dIrect negotIatIons.
OP AC counsel acknowledges that there are two dIvergent lInes of arbItral
authorIty on the "who IS the employer?" questIon, and that the cases are not easy to
reconcIle. However, he urges the board to embrace the analysIs of ArbItrator P PIcher In
Re IKO Industries Ltd. and United Steelworkers of America (2002), 118 L.A.C (4th) 1 - a
case whIch was deCIded after the Howe case, and whIch canvasses the legal landscape In
some detaIl. Counsel submIts that the IKO approach IS the one to follow
76
In IKO Industries ArbItrator PIcher carefully analyzed the conflIctIng
JUrIsprudence, and emphasIzed the fundamental Importance of "temporanness" - not Just
as a "fact" that has to be consIdered, but also as a pIvotal legal dIstmctIon, WhICh, In her
VIew, was gIven msufficIent consIderatIon In some of the cases that were put before her
(and whIch the umon relIes upon in thIS case). In Ms. PIcher's VIew, the faIlure to make
an analytIcaVlegal dIstInctIon between long-term (semI-permanent) outsIders workIng on
sIte In conJunctIon WIth bargaInmg UnIt members, and short-term "fill-m help" engaged
from tIme to tIme to meet a temporary need, has led some (even expenenced) arbItrators
Into an Incorrect legal result, whIch, m her opmIOn, should not be followed. In her VIew,
those arbItrators wrongly applIed a legal analysIs rooted In long term relatIonshIps, (where
there was a contInuIng connectIon to the workplace) to the very dIfferent sItuatIon of
short- term, temporary fill-ms, supplIed by an agency, and more connected to that agency
And thus they "got It wrong" In her opmIOn, temporary help agencIes perform a valId role
In our economy, and "theIr employees" remaIn as such, even when they are "workIng" for
"clIents"
OPAC urges us to apply Ms. PIcher's ratIOnale In the mstant case, and to
dIscount those deCISIons that seem to put too much weIght on "control of the work", and
InsuffiCIent emphasIs on the temporary engagement of the worker the ephemeral
connectIon WIth a partIcular busmess clIent, as compared to the more substantIal
connectIon WIth the agency whIch finds work for these IndIVIduals (whIch was also the
ratIOnale m the Carecor case supra)
77
OP AC counsel notes that whIle some of the agency workers worked for
scveral months at the OP AC premIses, all of them were truly "temporary" Indeed, It was
the very uncertaInty and flUIdIty and "temporanness" of theIr work wIth multIple
commgs and gOIngs, In response to ShIftIng work demands - that prompted OP AC to use
the servIces of an agency m the first place, rather than hIrIng Its own temporary
employees. After all, Its own workers had expressed lIttle mterest m dOIng that work, and
OPAC dId not want to engage In the process of hIrIng addItIonal new employees.
OP AC further argues (as Ms. PIcher noted) that when lookIng at the "seven
factor test" m York Condominium, It IS Important not to put too much weIght on "control
of the work" - partIcularly where, as here, the work m questIon IS routIne, and has already
been "streamed" by OP AC employees, so that It can be done by relatIvely unskIlled
agency workers, WIthout much supervIsIOn. The agency workers went to the shelves to get
the documents bundled by OP AC employees, and then they typed that InformatIon Into the
computer That was all there was to It.
In counsel's submIssIOn, there wasn't much actIve supervIsIOn In the
Instant case, because the work was so routme that none was reqUIred, and In that context,
we should not put much weIght on day-to-day control of "the work" - a propOSItIon whIch,
It IS saId, IS supported by the now domInant arbItral VIew, and also by the Supreme Court
of Canada declSlon In the Pointe Claire case. There was not much "control" by OP AC
eIther once the workers were Installed, they worked pretty Independently; theIr numbers
fluctuated m accordance WIth the external work flow; and any admInIstratIve matters were
78
handled by Pro Temps. OP AC submIts that fundamental control over the emplovment
relationship - as opposed to the work - always rested wIth Pro Temps, not OP AC, and It IS
that factor WhICh determmes "the real employer" for collectIve bargamIng purposes, and
not who prOVIded the mmImal supervIsIOn reqUIred In thIS case.
In counsel's submIssIOn, there is no dIchotomy In thIS case between "form"
and "substance", because the form of the relatIOnshIp IS, In fact, completely congruent
wIth the legal realIty Pro Temps IdentIfied Itself as the workers' employer; Pro Temps IS
the entIty whIch the agency workers regarded as theIr employer; Pro Temps IS the entIty
whIch OP AC treated as the employer; and Pro Temps assumed the responsibIlItIes of an
"employer", m respect the payment of wages and any statutory deductIOns or entItlements
that mIght be applIcable, and any workplace problem that needed resolutIOn.
It IS only the umon - a stranger to these relatIOnshIps whIch IS assertmg
that the "real employer" IS somethIng other than what the workers, the agency and the
clIent (OP AC), all belIeve and want them to be. And the CUrIOUS result IS that these
workers will find themselves covered by an alIen collectIve agreement, that reqUIres them
to pay UnIon dues, and prevents them from dealIng dIrectly WIth the entIty that both they
and Pro Temps regard as theIr employer Moreover, haVIng agreed that they would not
seek employment WIth OPAC, (WhICh took no steps to hIre them - rather the reverse), the
agency workers would unWIttIngly find themselves to be "employees" of OP AC after all.
7()
OPAC submIts that the unIOn's polIcy gnevance should be dIsmIssed. In
counsel's submIssIon, when the sItuatIOn IS consIdered, as a whole, there IS no reason to
conclude that OP AC IS the "employer" of these dIsputed workers, and therefore they do
not fall wIthm the ambIt of the OPSEU collectIve agreement.
VI - Discussion
Weare somewhat reluctant to burden these reasons WIth extensIve quotes
from earlIer arbItratIOn deCISIOns - partIcularly when those declSlons are not really
"bIndmg" upon us In any strIct legal sense, and the partIes appear to be In substantIal
agreement on the general "legal test" that we are to apply In thIS case (the so-called "seven
factor analysIs", dIscussed In York Condominium, supra). Moreover, ArbItrator Howe has
already undertaken an analysIs of "the law" In the earlIer declSlon between these same
partIes (whIch, stnctly speakIng, IS not bmdIllg upon us eIther), and we do not thInk that It
IS necessary to "remake the wheel"
However, we thInk that It IS useful to reIterate that thIS case IS ultImately
about "recognItIon" and "bargaInIng rIghts" rather than "work", as such, and that
"bargaInmg rIghts" are not really about "work" That pOInt was made In "Contracting Out,
an Arbitrator's Perspective" 1994-95 Labour ArbItratIon Yearbook, pp 325-354, as
follows (at p 331)
Nor does the Laskm theory of bargamIng rights [WhICh held that
the recognItIOn clause preserved the bundle of work done by
bargaInIng umt employees and prevented the transfcr of that work
to outsIders] accord WIth the statutory conccptIon of bargammg
80
units, because the OntarIO Labour RelatIOns Board, at least, has
been qUIte careful not to define bargammg rIghts m respect of, or
wIth reference to, work. The statutory language defines a
bargamIng UnIt only In relatIon to employees, and that IS what the
Board does as well Unless the partIes otherwIse agree, the typIcal
Board certIficate (whIch often becomes the recognItIOn clause) IS
framed wIth reference to "all employees" of an enterprIse m a
geographIC locatIOn. Job claSSIficatIOns are not mentIOned at all,
and In consequence, a umon's bargammg rIghts will contmue, not
only despIte the departure of Its OrIgInal supporters from the work
place, but regardless of what those employees happen to be doing
from time to time. Indeed, It IS even possible for those rIghts to
SUbSISt In the absence of actual support from any employees In the
bargamIng UnIt; moreover, bargaInIng rIghts can and do eXIst
mdependent of the collectIve agreement, or In fact any ongoIng
employer actIVIty An empty bargaInIng umt can nevertheless
support contInued bargaInIng "nghts", whether the emptIness IS
measured m terms of employees, work or both.
Now thIS IS admIttedly a CUrIOUS legal framework, qUIte unlike
common law notIOns of contract or agency But whatever ItS
parameters may be, It IS clear that bargaInmg nghts are not equated
WIth work In the way that Professor Laskm proposed, nor IS
arbItratIOn the ObVIOUS place to elaborate statutory polIcy In thIS
regard, later arbItrators were perfectly rIght to focus on the
employment relatIOnshIp, SInce (except, perhaps, for "craft"
bargaInIng UnIts), bargaInIng or representatIOn rIghts are defined In
respect of an employer, ItS employees and an "undertakmg" not
partIcular work" [emphasIs In the orIgmal, footnotes and case
CItatIOns omItted]
We agree WIth the UnIon that "what the work IS", and "who IS dOIng It", and
"how or In what CIrcumstances It IS beIng done", are all relevant to the Issues before us,
but what IS central to thIS case IS not "worJ{', as such, but rather the concepts of
"bargaining rights" and "recognition", as stIpulated m ArtIcle 2, and m that regard, we
thInk that It IS Important to remember that bargaInIng rIghts are held by the umon, not by
the employees, and that Issues about the so-called "Integnty of the bargammg umt" (i e
~I
the InterpretatIon or applIcatIon of the recognition clause) are dIfferent than the parochIal
concerns of IndIVIdual bargamIng umt members.
In thIS sense, bargaining rights are very much a "UnIon Issue", and not Just
an Issue for eXIstIng bargaInmg UnIt members - or for the IndIVIduals who may fall WIthIn
the scope of the bargammg umt, If the UnIon's InterpretatIOn prevaIls. And, In fact, that
determInatIOn may have to be made, regardless of whether dIsputed mdIvIduals actually
"want" to be m that bargaInmg UnIt, and perhaps, regardless of whether eXIstmg
bargammg umt members want them to be there.
The WIshes of employees m thIS regard are canvassed VIa the certrficatIOn
and termInatIon prOVIsIons of the Labour Relations Act; however, once "bargamIng
rIghts" are establIshed under that statute, the WIshes of the "employees" become
secondary Thus someone gomg to work for a umomzed busIness (or someone buymg a
umomzed busIness for that matter), must take the "collectIve bargamIng status quo", as
s/he finds It; and In any event, employee mtentIOn or expectatIon (especIally the
umnformed "mtentIons" or "expectatIOns" of a group of employees who may not know or
care about "theIr legal rIghts") may not be an unfaIling gUIdelIne to theIr actual legal
status. So, for example, whether or not the workers are entItled to statutory holIdays - to
take an Issue that surfaced m the eVIdence - does not depend upon whether they demand,
or expect to receIve, such statutory holIdays.
*
82
In any event. "bargaining rights" pertam to the statutory rIght of the UnIon
to represent a defined groupmg of employees - wh1ch m thIS case, 18 set out In ArtIcle 201
of the collectIve agreement. All collectIve agreements must contaIn a "recogmtIOn clause"
of thIS kmd [sec sectIOn 46 of the Labour Relations Act] Such recognItIOn clauses are
mandatory; and, to a conSIderable extent, they are also, an Immutable "gIven", that IS
largely beyond the reach of the pressures of collectIve bargaInIng (see Carpenters
Employer Bargaining Agency [1978] 2 Can L.A.C.R.B.R. 501 (Ont) and Cybermedix Ltd
[1981] O.L.R.B Rep Jan. 13) Because "recogmtIon" IS one the few thIngs that the partIes
cannot be compelled to bargaIn about.
The recognItIOn clause, IS the core around whIch a collectIve agreement IS
bUIlt; and m our VIew, It IS qUIte wrong to look at the bargaInIng UnIt as beIng essentIally
a group of speCIfic persons, or the bundle of "work" that they do - or to IdentIfy
bargaining rights WIth eIther the terms or the work opportunItIes of the partIcular
employees, who are currently employed. Such InterpretatIOn, gIves a statIc meanIng to the
collectIve agreement, whIch, on the contrary, contemplates a shIftIng work force,
encompassmg all emvlovees, employed from tIme to tIme, and varIously asSIgned to
dIfferent Jobs, to whIch the collectIve agreement applIes, when such emplovees fill them.
The truth of the matter is that a cardInal purpose of the collectIve agreement - and the
recognItIOn clause - IS to anticipate such employer-employee relatIonshIps, and to
regulate them, when they occur
XI
In the result, from a collectIve bargaInmg perspectIve, the bargaInIng UnIt
definItIon IS actually a more stable element In the legal equatIon, than some ephemeral
body of "bargaInIng UnIt work" - WhICh may change for all kInds of operatIOnal reasons,
that have nothIng to do wIth the terms of the collectIve agreement; and the actual
compOSItIon of the bargammg UnIt (i.e. who IS "In It" from tIme to tIme) can also change,
as the bus mess evolves.
*
The "bargaInmg umt", as defined In the recognItIOn clause, IS the
fundamental foundatIon for the whole collectIve bargaInmg edIfice; and m our VIew, It IS
no aCCIdent that the York Condominium test for "who IS the employer?" was developed by
the OLRB m a case InvolvIng the creatIon of bargaInIng rIghts (by certIficatIon) Because
"bargaining rights" pertam to an employer, and Its employees, and the employer's
undertakIng; and thus, the IdentIficatIOn of the legal relatIonshIp between the employer
and the employees IS a CrItIcal component In establIshIng the collectIve bargaInIng
framework - qUIte apart from the work that those employees may be dOIng from tIme to
tIme, or the negotIated terms under WhICh that work may be performed Moreover, even
In a settled collectIve bargaInIng relatIonshIp, It may be necessary to decIde whether
dIsputed IndIVIduals are "employees" of the employer, before the collectIve agreement can
be applIed to them (See sectIOn 56 of the Labour Relations Act whIch makes the collectIve
agreement "bIndIng" upon the employer and upon the "emplovees, In the bargaInIng UnIt
defined In the agreement" and compare sectIOn 114 of the Act)
84
IdentIfymg "the employer" and "the employees" IS therefore a crItIcal first
step to understandIng what legal rIghts or oblIgatIons there may be, as between them.
UntIl that IS done, one cannot assIgn, let alone define, those oblIgatIons.
*
Why have questIOns of thIS kInd engaged the attentIOn of so many
adJudIcators, m so many dIfferent "employment law" contexts? Why are there so many
cases on whether there IS an "employment relatIOnshIp" at all, and If so, WIth whom?
Because the labour of a human beIng IS not (or IS not only) a commodIty or artIcle of
commerce; and because workers In an employment relatIOnshIp are subJect to all kInds of
vulnerabIlItIes the vaganes of the market place; dangers In the work envIronment;
dISCrImmatIOn at the hands of the employer or other employees, and so on. Moreover, as
IacobUCCI J noted In HOJ Industries Ltd. v Machtinger [1992] S C.R. 986 "employment
IS of central Importance to our socIety" So It IS hardly surpnsIng that the employer-
employee relatIOnshIp has become the focus around whIch much work-place regulatIOn
will revolve' whether It be under the Human Rights Code, the Employment Standards Act,
the Occupational Health and Safety Act, the Labour Relations Act, or other employment-
related statutes, or, as here, under a negotIated collectIve agreement, whIch defines the
terms and condItIons of work for those to whom It applIes, and gIves those workers a
practIcal vehIcle for InfluenCIng theIr work SItuatIon, or respondIng to unfaIrness.
The legal notIOn of "employment" may be rooted In (or at least begIn WIth)
a "contractual relatIOnshIp" of some kInd. But It IS, at the very least, a speCIal kmd of
"contract", whIch engages a web of mterests and concerns that go well beyond the
8')
wage/work bargam - a web of human and publIc polIcy concerns that have led to an
overlay of regulatory legIslatIOn, and, m the labour relatIOns world, faIrly comprehensIve
regulatIOn under negotIated collectIve agreements. And In a collectIve bargaInIng settIng,
of course, common law notIons about the mdIvIdual contract of employment are of much
less SIgnIficance; because It IS the collectIve agreement that preVaIls and tells the employer
the terms on whIch employees must be engaged. That collectIve agreement not only ousts
the mdIVIdual contract of employment to a substantIal degree, but It does not necessanly
follow "common law rules" (See: McGavin Toastmaster Limited v Ainscough (1976), 1
S c.R. 718 , and compare International Longshoremen s Association, Local 273 et.al. v
Afaritime Employer Association et. al (1978) 78 CLLC parag. 14171 (S C C ) where the
Supreme Court held that a group of ostensibly unemployed workers could nevertheless be
treated as If they were "employees",jor collective agreement purposes - even though they
had not been formally hIred by anyone; they were not workIng for or supplymg theIr
labour to anyone; and they were not beIng paId wages by anyone. In Maritime Employer
Association, the Court saId that the UnIon's assertIOn that these IndIVIduals were not
"employees" was unduly "techmcal", and observed that the IndIVIduals In questIon were
"employees" covered by the collectIve agreement "whatever theIr rIghts and oblIgatIons
mayor may not be under the common law of master and servant").
GIven the centralIty of "employment" to the Ontano Labour Relations Act
(whIch also governs the collectIve agreement and the arbItratIOn process), It IS hardly
surprISIng that the OLRB has struggled WIth the task of IdentIfYIng employer-employee
relatIOnshIps, In a varIety of contexts, and has developed a conSIderable body of case law
86
on that questIon [see Nichirin Inc., [1991] OLRB Rep. Jan.78, Dare Personnel Inc.,
[1995] OLRB Rep July 935, upheld on JudIcIal reVIew [1996] OLRB Rep Nov./Dec
1014 (Ont. Ct. (Gen. DIV )), Ralston Purina Canada Inc., [1979] OLRB Rep June 552,
.~ylvania Lightmg Services, [1974] OLRB Rep Rep July 1173, Templet Services, [1974]
OLRB Rep Sept. 606, K-Mart Limited, [1983] OLRB Rep May 649; Best Personnel,
[1997] OLRB Rep September/October 849; Mackie Moving Systems Corporation (2002),
80 c.L.R.B.R. (2d) 195, Lantic Sugar Limited, [2004] OLRB Rep January/February 69]
LikeWIse, there IS a conSIderable body of arbItral case law; and for much the same reason.
because establIshmg an employer-employee relatIonshIp - and wIth whom - IS a necessary
first step In decIdIng whether the collectIve agreement should be applIed.
*
However, what thIS plethora of cases also tells us, we thInk, IS that
IdentIfYIng "the rea' employer", WIll not always be easy - partIcularly m a modem
economy where busmesses aSSOCIate, cooperate, and "do bUSIness" wIth each other, m a
multitude of dIfferent ways. On the contrary; It IS often very dIfficult. WhICh IS why there
IS a rIch (and not altogether conSIstent) JUrIsprudence before both the OLRB and other
adJudIcators, and IS also why provISIOns like sectIOn 1 (4) of the Labour Relations Act and
sectIon 4 of the Employment Standards Act, have been added to "employment" statutes,
so as to permIt tribunals to penetrate these ambIguous busmess relatIOnshIps and treat
separate legal entItIes as a common employer for vanous purposes (inCIdentally
abrogatIng common law notIOns, such as 'prIVIty of contract', and applYIng regardless of
the utIlIty of such arrangements from a purely busmess pOInt of VIew) Indeed, even the
common law courts seem to be movmg away from the old notIon that "no man can serve
H7
two masters" - findIng, In approprIate cases, that an employee can actually have two or
more separate legal entIties as hIs/her "employer" [See Downtown Eatery (1993) Ltd. v
Ontario et. al. (2001) 54 0 R. (4d) 161 (0 C.A.), where the Court also endorsed the
proposItIon that an employment relatIonshIp IS not sImply a matter of form, or technIcal
corporate structure]
*
The pOInt IS despIte the real dIfficultIes mvolved, IdentIfYIng the
relatIonshIps of "employer", "employee" and "employment", IS a legal exerCIse that has
to be undertaken, as a crItIcal first step In determInmg the applIcatIon of the collectIve
agreement; and m our VIew, It IS a step that has to be taken, even when the arrangements
under reVIew are drIven by bona fide busmess consIderatIons, that may not be expressly
designed to undermme bargaInIng rIghts. Moreover, m a collectIve bargaInIng context, It
IS an exerCIse that IS anImated by the concepts and precepts of collectIve bargaInIng law
There has to be an employer-employee relatIonshIp to begIn WIth, before
the collectIve agreement can apply; and that determmatIOn has to be made, obJectIvely,
and as a matter of labour law, and not Just by reference to the purported IntentIOns or
motIvatIons of the partIes' to the bUSIness arrangements under reVIew Because, to repeat:
bargaInIng rIghts are InextrIcably bound up WIth a particular employer-employee
relationships, and If there are none, then ipso facto, there are no "bargaInIng rIghts" to
attach or to be undermIned.
88
BargaIning fIghts are about bargaInIng, collectIvely, for a group of
"employees", and the employer-employee relatIonshIp IS the baSIC bUIldIng block of thIS
bilateral collectIve bargaInmg system. And "bargaInIng rIghts", In thIS sense, are m the
custody of the UnIon - not the employees, and not the employer
*
We have read the IKO deCISIOn wIth Interest, and we agree wIth counsel for
OP AC that It contaInS a useful reVIew of the arbItral case law However, the dIfficulty
that we have WIth ArbItrator PlCher's approach m IKO is, we thInk, exemplIfied by the
followmg excerpt from that case'
A prIncIple of utmost Importance IS the protection of the union s
bargaining rights and the protection of the collective agreement
entitlements of employees In a company's bargaInmg UnIt. As
stated In Re Metro Calgary & Rural General Hospital. Dist. No
93 and UN.A Local 121 (1988), 3 L.A.C (4th) 265 (BeattIe) at p
274, "ArbItrators must zealously guard agaInst employers USIng
the gUIse of subcontractIng to undermIne the rIghts of bargamIng
umt employees" Compames are not permitted to escape theIr
oblIgatIons to bargaInmg umt employees under the collectIVe
agreement by ImportIng workers from employment agenCIes.
Companies are not entitled to bring in agency personnel to work
alongside bargaining unit employees, performing the same work,
under the same supervision, as a scheme to pay them less than they
would have to pay their own emplovees under the collective
agreement. Bringing in outside workers as a way to escape
obligations under a collective agreement would clearly undermine
the Union and the rights of bargaining unit employees When that
occurs, arbItrators have unammously stepped In to prevent such
schemes by declarIng the agency workers to be employees In the
bargaInIng UnIt and thus subJect to the collectIve agreement.
On the other hand, there are CIrcumstances where the rIghts of
bargaInIng UnIt members are fully protected and where It IS eIther
Impossible or ImpractIcal for a company to hIre someone Into the
company to cover such contmgencIes as temporary absences or
temporary peaks III workload Thcre may be SItuatIOns, In other
words, where there are no qualIfied bargaInIllg UnIt employees
aVaIlable to do the work, whcre therc are no qualIfied bargaInmg
10(')
umt employees on layoff, where the overtIme entItlements of
bargammg umt employees have been fully met, where a company
may have posted the temporary posItIons wIthout success, or It
may have trIed to hIre new employees wIthout success and/or
where there are no restnctIons m the collectIve agreement bemg
vIolated by the use of outsIde workers. In these circumstances, the
company s utilization of an employment agency to supply workers
normally does not undermine either the union or the employees in
the bargaining unit largely because, in the circumstances, the use
of outside workers normally does not detract from the rights of
bargaining unit employees
The JUrIsprudence IS umform m recognIZIng the Importance of
protectmg the nghts of bargaInIng umt members and preventmg an
undermmmg of the union s bargamIng rIghts. The JUrIsprudence IS
not umform, however, In the marmer m whIch It balances these
collectIve bargaInIng rIghts with the right of the company to
manage its business in a practical matter that does not undermine
collective bargaining [emphasIs added]
ThIS passage begIns wIth a useful acknowledgement that there IS a
dIstmctIOn to be made between protectIng the union s bargaining rights, on the one hand,
and protectIng the collective agreement entitlements of employees on the other Those are
qUIte dIfferent thIngs, and It IS approprIate to separate them.
However, m our VIew, the decIsIon then drIfts rather too far, (and too
ImpreCIsely), Into Issues of motIve or mtentIOn (so-called "schemes to "undermme
bargammg rIghts", or to "escape" collectIve agreement oblIgatIOns - an "unfaIr labour
practIce flavour" as It were), and the decIsIOn does so, wIthout paYIng careful attentIon to
what "bargaInIng rIghts" actually are, whIle, at the same tIme conflatIng the notIOn of
"bargamIng rIghts" (or "recognItIOn"), WIth the somewhat nebulous "rIghts of bargamIng
umt employees to be fully protected", or whether bargaInmg UnIt employees are somehow
"preJudIced" by treatIng other workers as also beIllg members of the bargaInmg UnIt.
90
There are too many thmgs mIxed m here; and we thmk that It helps to keep
them separated.
For example If "undermInIng bargaInIng rIghts" means reducmg the work
or the number of employees In a bargaInIng UnIt, then bargainIng rIghts can be
"undermIned", In practIcal terms, whether or not the employer has some "scheme" to do
so, and, perhaps more Importantly, some pretty serIOUS "undermInmg" can occur, wIthout
there beIng anythIng Improper about It at all (see for example' sectIOn 84 of the Labour
Relations Act, whIch recognIzes the employer's right to shut down all of part of ItS
busIness so long as It does not constItute a lockout, or some other unfaIr labour practIce).
Nor would anyone suggest that there was anythIng wrong wIth IntrodUCIng new
machInery, even If the avowed purpose of such change In work methods. was to elImInate
some expenSIve employees.
Some kInds of "undermInIng" (in the sense of UnIlateral employer actIons
that are preJudIcIal to employee mterests) are perfectly legItImate; and to thIS extent there
IS somethmg to be SaId for ArbItrator's PIcher's comment on the freedom of the employer
to "manage Its bUSIness" an employer has some flexibIlIty In structunng ItS affaIrs, so as
to mInImIZe ItS costs - even those costs that are assocIated wIth haVIng a collectIve
agreement.
On the other hand, recognItIon and bargaInIllg nghts are prImanly about
the rIght to engage III collectIve bargaInIng Itself, on behalf of a defined grOUpIng of
91
employees not the terITIS that are bargaIlled, and that are embodIed In the collectIve
agreement. Indeed, bargamIng rIghts precede, and eXIst apart from, the collectIve
agreement (for example: when the agreement has expIred and the partIes are negotIatmg
for a new one, the UnIon stIll has "bargammg rIghts" for the employees). And we thmk It
can be a lIttle mIsleadmg to focus unduly upon so-called "schemes" to aVOId bargamIng
nghts. Or on an employer's entrepreneurIal freedom, and asserted "rIght to manage Its
bUSIness" for that matter For such "rIght" IS cIrcumscribed by the language of the
collectIve agreement (and by varIOUS statutes); and the employer has an oblIgatIOn to
apply that collectIve agreement, even when It IS not In the employer's bus mess Interest to
do so
SImIlarly, the assertIOn that "thIS IS a common bUSIness practIce or
commercIal arrangement", does not necessanly command any partIcular outcome from a
labour law perspectIve (as banks and receIvers have dIscovered when theIr commercIal
practIces collIde wIth collectIve bargaInmg rIghts), because common law conceptIOns or
consIderatIOns are sometImes abrogated or modIfied by the tenets of labour law (just as
the common law courts have shown consIderable IngenUIty m adaptmg common law
notIons of "contract" to the specIal needs of an employment contract).
No doubt an "unfaIr labour practIce flavour", WIll prompt the adJudIcator to
look at the SItuatIon WIth a JaundIced eye. But the fact IS, bargaInIng rIghts - the rIght to
represent employees - are always "undermIned" when the recognItIOn clause IS defined
WIth reference to "all employees" (as thIS one IS), and the employer falls to apply that
92
agreement to persons who are, as a matter of collective bargaining law, "Its employees"
And that IS so, whether or not the employer IS actmg "In good faIth" (whatever that means
m thIS context); and whether or not there are good busmess reasons for domg so (i.e If It
IS In the employer's self mterest), and whether or not, there IS any overt "antI-umon"
IntentIOn, and whether or not any existing employees are ImmedIately preJudiced.
The IKO approach seems to contemplate a statIc bargaInmg umt, when
most collectIve agreements - mcludmg the present one - are defined elastIcally, so as to
encompass all new employees' whatever they are dOIng and whenever they become
employees of the employer, and regardless of the practIcal Impact that thIS mIght have on
eXIstIng workers.
IKO seems to say that the comfort of the existing employees may have a
promment role In deterImnmg whether the collectIve agreement "should" be applIed to
some other group of individuals who may be "employees" as well, as a matter of
collectIve bargaInmg law; and that the employer's oblIgatIon to apply the agreement to
these other employees, WIll turn, somehow, on whether the existing employees are
prejudIced In some way
And IKO also seems to focus on the results of collectIve bargaInIng - the
terms of that employees have acqUIred (and whIch the employer IS purportedly trymg to
"escape" from), rather than the eXIstence of the relatIOnshIp upon whIch collectIve
bargammg 18 bmlt - and whIch, In thIS sense, IS antecedent and more fundamental.
I))
We have some dIfficulty wIth these proposItIOns. For, not to put too fine a
pOInt on It: the employer IS entItled to "escape" If the persons m questIon are not ItS
employees; and It IS not entItled to escape If the persons m dIspute are Its employees. And,
In our VIew, ItS desire to "escape", or whether It has "good bUSIness reasons" for dOIng so,
are not determmatIve In that regard. Nor, In our VIew, does It necessanly matter to the
InterpretatIOn of the recogmtIOn clause, that some eXIstIng employees may be affected by
such mterpretatIon - pOSItIvely or negatIvely
For example' suppose that an employer hIred a group of new full-tIme or
part-tIme employees, WIth the result that there was a reductIon In the work opportunItIes of
eXIstmg employees. It seems to us that such qegatIve Impact on eXIstIng workers, would
not affect whether the newcomers fell WIthIn the scope of the "all employee" bargaInmg
UnIt and collectIve agreement, so long as the newcomers were, Indeed, employees of the
employer Because the bargaInIng UnIt IS framed elastIcally, and expands elastIcally, so
that any new workers on the scene SImply "fall In", automatIcally - whether or not theu
presence affects the rIghts of eXIstIng employees In some way
To be clear' the factors IdentIfied by ArbItrator PIcher, If present, may well
affect the way In whIch the arbItrator VIews the SItuatIOn. An "unfaIr labour practIce
flavour" or an apparent "scheme" to aVOId the collectIve agreement, are not Irrelevant
(although they are probably more relevant to the OLRB, eXerCISIng ItS supervIsory
JUrISdIctIon under the Labour Relations Act - see agaIn. Contracting Out An Arbitrator's
94
Perspective in Labour Arbitration Year Book 1994-95 at pp 325-354 and the OLRB
decIsIOns dIscussed therem) Nor should an adJudIcator Ignore the practIcal consequences
of the competmg InterpretatIOns urged upon hun/her And In a collectIve bargammg
settIng, an adJudIcator may be mclmed to look pretty carefully at unIlateral actIon whIch
appears to blunt or dIlute collectIvely bargaIned oblIgatIOns, and may look less carefully at
umlateral actIon whIch does not have that effect. Indeed that IS what seems to underlIe the
follOWIng comments by ArbItrator ShIme, In Bristol Myers, supra (although they mIght
be crItIcIzed for focusmg too speCIfically on "work")
I am also of the VIew that a contractmg In SItuatIOn such
as the one before us dIffers from the usual contractmg
out SItuatIOn. When a company and a UnIon negotIate a
collectIve agreement they negotIate about the work.
Usually, as In thIS case, there are dIfferent Job
claSSIficatIOns reCeIVIng dIfferent rates of pay The
substratum upon whIch those claSSIficatIons are formed
IS the work of the enterprIse. To brIng persons Into a
plant or work locatIon to perform the same work as
bargamIng umt employees destroys or erodes the
foundatIOn upon whIch the collectIve agreement IS
negotIated.
In my VIew, where persons are brought Into a work
SItuatIOn to work alongSIde regular employees and
where they perform the same work as those employees,
the mere fact that those persons are recruIted through the
auspIces of an mdependent agency IS not suffiCIent to
create a "true" contractIng out SItuatIon as that term IS
generally understood.
Be that as It may, In our VIew, an "IllICIt motIve" (whatever that means) IS
not a necessary IngredIent for a findIng that the employer has not properly applIed the
recognItIon clause; and we faIl to see, for example, why the eXIstence of employees on
layoff, has anythmg to do WIth "who IS the employer?" - or that the answer to that
l)')
questIon would likely be dIfferent, dependIng upon such factors. Nor IS It necessanly
determInatIve that the newcomers are paId more, or less, than bargaInIng UnIt employees,
for to gIve such factors sIgl1lficant weIght, would be to say that the employer's ul1l1ateral
faIlure to apply the collectIve agreement to dIsputed workers, could InapproprIately
Influence whether It should have been applIed In the first place.
These matters are all "facts" Indeed they may be relevant "facts" But
they have to be weIghed, like other "facts" That IS why we observed In the openIng
paragraphs of thIS decIsIon that what the employer pOInts to as dIfferences In the terms of
employment for the agency workers, IS the very thIng that the UnIon sees as eVIdence of a
breach of the collectIve agreement, and that IS why VIrtually all of the cases - mcludmg
Pointe Claire - emphaSIze that the SItuatIOn has to be VIewed holIstIcally
In the Instant case for example, would Pro Temps be any more or less the
"employer" of the dIsputed workers, If some OP AC employees happened to be on layoff
at the tIme that the Pro Temps arrangement was concluded? Or If some OP AC employees
wanted to work overtIme, but couldn't, because the company had engaged Pro Temps
employees to do the work Instead? Or If Pro Temps actually paId MORE to the dIsputed
employees than they would make under the collectIve agreement? Or If bargaInIng Ul1lt
members were adversely affected m some other way by the presence of such newcomers?
We do not thmk so
96
Such factors may well be relevant to any damages that may be payable If
the collectIve agreement was not properly applIed, but, m our VIew, they are less helpful
m answerIng the more fund3lllental questIon of whether the agreement should be applIed
m the first place' WhICh depends upon whether the agency workers were "employees" of
Pro Temps or of OP AC For what matters In the Instant case, IS not Just the rIghts of
eXIstmg employees whose work opportunItIes may be dImInIShed by a leakage of work
outSIde the bargamIng UnIt (not, In Itself, a breach of this collectIve agreement); but rather
whether the bargaInIng umt embraces partIcular persons to begIn WIth - whIch depends
upon establIshIng an employer-employee relatIOnshIp WIth OP AC And however elastIc
the concept of employment may be In a collectIve bargaInIng settIng (and It clearly has
dIfferent attributes In that settIng than would be the case at common law), one has to be
very careful about handlIng questIOns of "motIve" or alleged adverse Impact.
It also has to be remembered, that m the Instant case, the unIon IS not
complamIng that bargaInIng UnIt work should have been gIven to eXIstIng bargaInmg umt
members. The umon admIts that eXIstIng bargaInIng UnIt members have no monopoly on
bargaInIng UnIt work. What the umon claIms, Instead, IS that the persons domg that work -
the agency workers - were "employees" m the bargaInIng UnIt, to whom the collectIve
agreement should have been applIed. The UnIon says that, In effect, these workers have
"become" bargamIng UnIt members, so the collectIve agreement should have been applIed
to them.
91
What 18 the result of that submIssIon? If the UnIon IS rIght, then the
bargamIng umt would have had an addItIonal 64 members workIng In Toronto, and the
faIlure to apply the agreement has that negatIve consequence -"undermmIng bargammg
nghts - even If none of the eXIstIng employees are dIsadvantaged by the sub-contract III
any way (lost overtIme opportunItIes or whatever). Conversely, If the employer IS rIght,
and Pro Temps IS the "employer" of the dIsputed workers, then we do not see that It
matters very much whether umomzed employees represented by OPSEU have less access
to such work. And we do not thInk that the apparent lack of materIal preJudIce to eXIstIng
bargaInIng UnIt members IS a domInant factor In choosmg between these alternatIves.
*
Nor, III the context of the present case, are we mclIned to gIve
"temporarIness" the kmd of analytIcal SIgnIficance that ArbItrator PIcher gIVes It m IKO -
Indeed, she makes that factor the lInch pIn of her whole analysIs (her dIstmctIOn between
so-called "Type P" and "Type T" cases) Because unless the collectIve agreement
language excludes them (WhICh thIS one doesn't), then short-term or casual "employees"
are not ipso facto excluded from "all employee" bargaInIng UnIts, and, the fragIlIty of that
analysIs IS pOIntedly illustrated m the present case, where the partIes have qUIte
specIfically provIded that "temporary employees" WIll "for greater certaInty" be included
III the bargammg UnIt.
Agamst that background,how can "temporanness" be gIVen the
predomInant analytical SIgnIficance that ArbItrator PIcher gIves It In IKO - even If she IS
rIght that when decIdmg who the "real employer" IS, m partIcular cases, some arbItrators,
98
m some Instances, may not have gIven enough weIght to the sporadIc nature of the
workers' engagement?
ThIs IS not to say that "temporarIness" IS Irrelevant eIther But It IS Just one
factor among many; and m our VIew, It IS no more legItImate to "Imply" a lImItatIon on
the applIcatIOn of the agreement to "temporary employees", than It would be to "Imply" a
lImItatIon on the rIght of the employer to "contract out" work - partIcularly, where, as
here, the agreement speCIfically apphes to "temporary employees", and thIS agreement
expressly lImIts any resort to "ImplIcatIOn" (See ArtIcle 1 02 and ArtIcle 10.21 of the
agreement)
Had the partIes made "temporanness" a lImItIng factor in theIr recognItIOn
clause, then the IKO analysIs might be more helpful. But they haven't. Rather the reverse
they have speCIfically saId that temporanes are mcluded.
*
So we return to the questIon of whether the dIsputed IndIVIduals are
employees of OP AC or employees of Pro Temps, and the approprIate "tests" to apply In
answenng that questIon.
*
In the earlIer OP ACIMP AC deCISIOn, ArbItrator Howe, described the
arbItrator's task thIS waY'
34 Many awards have focused on control as bemg the segment of
the four-fold test most pertInent to resolVIng Issues pertaInmg to the
contractIng out (or contractIng-Ill) of work. Indeed, many awards
have concentrated almost exclUSively on the day-to-day control of
<)t)
the work. However, as noted by arbItrator WhItaker m The Bay and
Retail, Wholesale (USWA) (grievances relating to London Fog,
Nectar and Posting), supra, at p 14, the emphasIs on day-to-day
control has gradually been gIvmg way to a broader VIew of control
More recently, there appears to be a developmg arbItral consensus
that "overall" control over the employment relatIOnshIp as opposed
to "day to day" control, should be the focus of the mqUlry (see for
example Re Don MIlls FoundatIOn and S.E.I.U. (1984), 14 L.A.C
(3d) 385 and Re Carecor Health ServIces Inc. and O.N.A. (1992), 30
L.A.C (4th) 391). ThIS analYSIS has emerged m a number of cases
dealmg wIth "employment agenCIes" In movmg to thIS WIder focus
on "overall" control, arbItrators have been attracted to what has been
referred to as the "seven factor test" denved from the decIsIOn of the
Ontano Labour RelatIOns Board m York CondommIUm Corp.,
[1977] 0 L.R.B Rep 645 Those seven factors are the followmg:
(1) The party exercIsmg dIrectIOn and control over the employees
performmg the work;
(2) The party beanng the burden of remuneration,
(3) The party Imposmg diSCIplIne;
(4) The party hmng the employees,
(5) The party wIth the authonty to dIsmIss the employees;
(6) The party WhICh IS perceIved to be the employer of the
employees,
(7) The eXIstence of an mtentIOn to create the relationshIp of
employer-employee.
AdjudIcators at both the Ontano Labour RelatIOns Board and on
Boards of ArbItratIOn have been careful to observe that thIS IS not a
calculus to be applIed mechamcally There IS no partIcular weIghtmg
whIch must be gIVen to each factor In every case, regard must be
had to the nature of the mdustry and the partIcular type of work
performed. In our VIew however, the "seven factor test" IS a useful If
not defimtIve tool and we would apply It m thIS case.
In the Pointe Claire case the Supreme Court of Canada observed.
Accordmg to thIS more comprehenSIve approach, the legal subordmatIOn
and mtegratIon mto the busmess cntena should not be used as exclUSIve
100
cntena for Idenhfymg the real employer In my VIew, m a context of
collectIve relatIOns governed by the Labour Code, It IS essential that
temporary employees be able to bargam wIth the party that exerCIses the
greatest control over all aspects of theIr work--and not only over the
supervIsIOn of theIr day-to-day work. Moreover, when there IS a certam
sphttmg of the employer's IdentIty m the context of a tnpartIte
relatIOnshIp, the more comprehensive and more flexible approach has
the advantage of allowing for a consideration of which party has the
most control over all aspects of the work on the specific facts of each
case. Without drawing up an exhaustive list of factors pertaining to the
employer-employee relationship, I shall mention the following examples
the selection process, hiring, training, discipline, evaluation,
supervision. assignment of duties, remuneration and integration into the
business [emphasIS added]
And lest It be thought that thIS IS a novel way of lookIng at thmgs, here IS what the
NatIonal Labour RelatIOns Board had to say about the Issue, some 60 years ago
In determmmg the true nature of a worker-employer relatIOnshIp,
the followmg factors should be taken Into conSIderatIOn -- the nght
to hue and dIscharge; the permanence of the relatIOnshIp, whether
the work IS part of the employer's regular bUSIness; the extent of
control whIch, by agreement, the employer may exerCIse over the
detaIls of the work, the method and the determInatIOn of the
amount of compensatIon, the skIll reqUIred m the partIcular
occupatIOn, who furnIshes the tools, matenals and place of work;
who has control of the premIses or the work IS done; whether the
person dOIng the work IS engaged m an Independent bUSIness or
enterpnse and partIcularly whether he stands to make a profit on
the work of those workmg under hIm, and the partIes belIef as to
the nature of the legal relatIOnshIp created. No one factor IS
controllIng; nor IS the lIst complete. The character of the
relattonshIp IS to be appraIsed by the presence or absence of no
smgle eVIdentIary factor, but by an overall VIew
[See Kansas City Star Co (1948), 76 N.L.R.B 384 - mentIOned In Ford Motor Company
supra, as IS thIS passage]
*
101
The dIfficulty, of course, IS that the relevant factors do not necessanly pOInt
In the same dIrectIon, and they do not necessanly bear equal weIght; so that It WIll always
be necessary for the adJudIcator to look at the sItuatton holistICally, m order to decIde
what overall outcome makes the most sense In the settmg under review In Sutton Place
Hotel & Hotel and Club Employees Union, Local 299 [1980] O.L.R.B Rep Oct. 1538
[another certrficatIon case] Ms. PIcher (then sIttmg as a Vice ChaIr of the OLRB)
described the exerCIse as follows.
The weIght to be accorded to the vanous mdIcIa of employer status
as set out York Condominium cannot be aSSIgned In a vacuum.
When one of the factors IS combIned WIth another In the hands of
one company, the Board may conclude that they accurately
IdentIfy the employer, whIle standing alone or m some other
combmatIon they may not. The SIgnIficance of each mdIcator can
only be ascertaIned through an appreCIatIon of how they all fit
together WIth m the facts of each case. It IS only then that the
board can decIde whIch factors In the partIcular case most
accurately reflect and IdentIfy the employer for collectIve
bargammg purposes.
A partIcularly Important questIOn answerable through an
evaluatIon of all of the factors set out In York Condominium IS who
exerCIses fundamental control over the employees. In some cases
control of hmng may reflect fundamental control. In other
SItuatIons, remmIscent of the hlTIng hall, It may not. In some cases
day-to-day supervISIOn may suggest fundamental control, mothers
It may not. SImIlarly WIth the payment of wages In the factual
mIX of some cases the payment of wages may, along WIth other
factors, suggest who holds fundamental control while mother
cases It may be of mmor SIgnIficance. No smgle factor lIsted m
York Condominium mevItably pomts to the posseSSIOn of
fundamental control. The Board's ultImate evaluatIon of who
holds fundamental control m any partIcular fact SItuation,
however, IS generally the smgle most of detenmnatIve questIOn m
IdentIfymg the employer In a word, to find m the seat of
fundamental control IS generally to find the employer for the
purposes of the Labour RelatIOns Act.
102
And m Teamsters Local 419 & K Mart Canada Limited [1983] 83 CLLC parag. 16037
Mr Howe, (also then sIttmg as a Vice ChaIr of the OLRB) put It thIS way'
The cases have generally not aSSIgned any partIcular order of
pnonty to those factors, but rather have tended to mdIcate that the
weIght to be gIven to each factor must depend upon the facts of
each case. However, the Board has tended to attach consIderable
sIgnIficance to "ovemdmg control" m determmmg whIch of two or
more entItIes IS the employer of certam persons. Moreover, the
Board has consIstently found that neIther pnvate arrangements as
to who IS the employer, nor admmIstratI ve paymaster
arrangements, are mdICatIve of the true employer
And surely thIS "context-sensItIve synthesIs" IS the correct approach as IS
perhaps demonstrated by Ms. PIcher's comment on "hmng" and "hmng halls" (and also
by the Supreme Court's approach m Maritime Employer Association).
Thus, m the constructIOn mdustry, where many Jobs are short term, mere
"temporanness" cannot be gIven predommant weIght; moreover, m the constructIOn
mdustry, where the umon operates a "hmng hall", It IS the umon that selects employees for
referral to a partIcular Job, and there IS no "hIring" m the sense that one would see m an
mdustnal settmg. Yet no one would say that the unIOn was the "employer", Just because
the umon had a deCISIve role over the employee's access to work, or because the umon
mamtamed penSIOn, welfare, or msurance arrangements that, m a dIfferent settmg, mIght
be proVIded by an employer Nor would such workers be any less "employees" because
they went from Job to Job, spendmg only a few days, or weeks, on each one
Hn
In the constructIOn mdustry, a worker has a much stronger connectIOn wIth
hIS UnIon than wIth any partIcular employer, and It IS the UnIon that effectIvely controls
access to work. But that does not turn the UnIon mto the employer It merely dImInIshes
the weIght that should be gIven to factors that, m some other settmg, may have stronger
probatIve value. And, whIle the colloqUIal term "employment agency" does not
necessarily SIgnIfy an "agency" relatIOnshIp, m a legal sense, that may nevertheless be an
accurate descnptlon of what the relatIOnshIp actually IS (I.e. an employment agency may
be a firm that IS m the bus mess of procunng, for a fee, persons for employment or
employment for persons - not unlike the umon hmng hall, whIch IS also a mechamsm for
refemng people to work, albeIt wIth no dIrect fee attached).
Context does not control the result, of course. Nor IS the result controlled
by the consequences that flow from one alternatIve rather than another The analytIcal
elements have mdependent value. However, the mterpretatIon process does not take place
m a vacuum, so that the general factual settmg may matter - Just as It may matter what the
legal purpose of the enqUIry IS. to SItuate the person under some mmImum standards
legIslatIon, to determme whether the Human Rights Code applIes; to conSIder the
applIcatIon of the collectIve agreement and/or the Labour Relations Act (whIch should be
congruent m thIS regard), and so on. [Maritime Employer Association, supra IS another
good example of the Importance of context, because It IS dIfficult to explain the result m
that case WIthout reference to the speCIal enVIronment of the long-shonng mdustry,
together WIth the Court's marked mcItnatIOn to eschew and common law categones, and
get at "what was really gomg on"]
104
*
For present purposes, we do not thmk that It IS necessary for us to SIgnIfy
our "agreement" or "dIsagreement", wIth the conclUSIOns that other adJudIcators have
reached, on the eVIdence before them, or to mdIcate whether (or why) we may thmk some
of these other adjudIcators have "got It wrong" It suffices to say that the arbItral exerCIse
IS a contextual one, and that adJudIcators faced wIth sImIlar sItuatIOns can reasonably
dIffer as to result - as, infact, OPAC urges us to do with respect to the Howe Award. For
It must be remembered that, m the mstant case, OP AC argues that the Howe case IS not
only dIstmgUIshable, but was also "wrongly decIded"
*
However, we do thmk that It IS worth recordmg the VIews, respectIvely, of
Professor Weiler m Re AmpUtrol Electronics Ltd.& Communications Workers of America,
1969 (cIted WIth approval m IKO, supra), and ArbItrator Larson, Re St. Jude s Anglican
Home & B eN U.(1996), 53 L.A.C.(4th) 111 These oft-quoted passages contaIn a useful
remmder that the adJudIcator should take a pragmatIC and functIOnal approach to these
questIOns - one that IS not unduly dnven by the "form" of the relatIOnshIp
When an employer negotIates an agreement WIth the UnIon, he
accepts certam standards by whIch hIS employment relatIOns will
be governed. He IS permItted to exclude certam work from the
operatIon of these standards If he arranges to have It performed by
men who are employed by another company However, hIS
oblIgatIOn to respect the agreement m connectIon WIth hIS own
employees cannot be aVOIded by the SImple colorable deVIce of
saYIng that certam men are not hIS employees. These men must
really be someone else's employees, not hIS own, and to thIS end,
the law has establIshed certam tests for determmmg when [the
employment relatIOnshIp] eXIsts.
Hence, there IS nothmg mcongruous about the Company bemg
unable to achIeve ItS subcontract 111 tillS case It wants to have
to')
certam men workmg contmuously on Its premIses, operatmg Its
eqUIpment, under routme standards or specIfic mstructIOns whIch
largely stem from Its own supervIsIOn, and paid out of the fund for
hourly payments WhICh IS closely related to the hourly wages of
these men. At the same tIme, It wants these men not to be
consIdered ItS employees so that It need not respect the collectIve
agreement It has freely negotIated and accepted. Unfortunately, It
cannot 'have ItS cake and eat It too' It must make real
organIzatIOnal and operatIonal changes whIch are consIstent WIth
the actual performance of the work by another company or see
Itself become the actual employer of the men that the latter merely
supplIes.
" the real questIOn to be decIded IS whether a true contractmg
out has occurred m the first place. That IS the whole pomt of the
applIcabIlIty of the varIOUS tests, whIch IS to say, to determme
whether the employer has effectIvely abdIcated that work to the
employment agency so that one could conclude that the proVISIOns
of the collectIve agreement would not apply to It. If the work has
not been contracted out, then It follows logICally that the collectIve
agreement contmues to control how It must be done. Only If It has
been properly contracted out does the work fall outside of the
control of the collectIve agreement.
A contractmg-m mvolves a SItuatIon where the employer purports
to engage a contractor to do bargammg umt work at the same SIte
as the bargammg umt employees. As WIth any contractmg out
SItuatIon, whether that constItutes an effectIve alIenatIOn of the
work so as to preclude any further applIcatIOn of the collectIve
agreement to It, must be measured by reference to the vanous tests
set out in the cases. Only where the work IS generally contracted
out or IS mCIdental to the work of the bargammg umt, can the
employer escape the oblIgatIOn to apply the terms of the collectIve
agreement "
There IS an organIzatIonal and collectIve bargammg realIty whIch has to be
taken mto account, and whIch may preVail over the form of the relatIonshIp To put the
matter colloqUIally' the adJudIcator must also be senSItIve to "what IS really gomg on"
*
106
Finally, havmg begun thIS dIscussIOn wIth the observatIOn that "bargammg
nghts" and "recognItIon" are not pnmarily about "work" (as such), we WIll conclude by
observing that, m our opmlOn, the ongm and control of "the work" and "the workplace",
arc nevertheless Important mdIcators of both "employment", and who the "employer" IS,
for the purposes of collectIve bargammg and the collectIve agreement. Because an
employee IS typIcally a person who performs "work" for an "employer" for wages, and
"the employer", m turn, IS typIcally (although not always or exclUSIvely) the entIty' that
controls these work opportumtIes, that controls the context and/or workplace m whIch the
work IS performed, that determmes the machmes and matenals that are to be used III
connectIon WIth workmg; that oversees the way that employees mteract WIth each other,
whIle workmg m the workplace; that takes the ImmedIate benefit of the work or servIces
so proVIded, and that bears the ultImate finanCIal burden for the wages Incurred.
Indeed, It IS these aspects of the employment relatIOnshIp, taken together
WIth the vulnerabIlIty of employees III such relatIOnshIps, whIch has prompted the
LegIslature to affix "the employer" WIth vanous legal responsibIlItIes m connectIOn WIth
the work and the workplace and the workers.
Thus, for example: It IS the employer whIch usually (although not always,
or exclUSIvely) controls the work enVIronment to whIch health and safety, worker
compensatton, hazardous substance regulatIons and the like apply; and It IS the employer
WhICh usually (although not always, or CXChISIVely) IS m a pOSItIon to ensure that such
work enVlfonment meets mImmum protectIve reqUIrements, (e.g. mundane matters such
107
as safety guards for machmery, or mstItutIOnal arrangements such as health and safety
commIttees, so that workers III an establIshment can partIcIpate m addressmg those Issues
or receIve mformatIon about them (WHMIS)), and It IS the employer that (usually,
although not always or exclUSIvely) IS m the best posItIon to ensure that the worker IS not
harassed or dIscnmmated agamst m employment by hIs/her coworkers, or at all, and to
ensure that she IS paId m accordance wIth appropnate pay-eqUIty pnncIples.
SImIlarly, It IS the employer WhICh usually (although not always, or
exclUSIvely) controls the ebb and flow of work, wIth whIch any number of regulated
employment consequences are connected. overtIme reqUIrements If extra work hours are
needed or worked, layoffs for lack of work, wIth assocIated notIce reqUIrements
dependmg on the SIze and duratIOn of the layoff; respIte from scheduled work m the form
of maXImum hours or prescribed holIdays, release from work to meet famIly emergencIes;
prescribed eatmg penods; and so on.
It IS the power whIch the employer exerCIses over such matters, whIch
tnggers regulatIon of the matlller m whIch that power IS exercIsed, Just as It IS the abIlIty
of the employer to control these thmgs, to the potentIal dIsadvantage of workers, actmg
mdIvIdually, WhICh has prompted LegIslatures to permIt employees to act collectIvely,
through a trade UnIon of theIr chOIce, m order to mfluence the way m WhICh the employer
behaves.
108
The "employer" IS the entIty whIch - from a pragmatIc and functIonal
perspectIve - possesses those powers, to whIch the "countervaIlmg power" of employee
collectIve bargamIllg responds. And the "management nghts" found m collectIve
agreements m clauses WIth that tItle, also mdIcate the kIllds of functIons, whIch, If
exercIsed m the work place, mform us of the IdentIty of the employer
Now, we have been careful m the prevIOUS paragraphs to hedge each of
these statements WIth the qualIficatIOns "typIcally", or "usually" or "not always, but
exclUSIvely", because the factors mentIOned are mdIcators only, and are dIfficult to apply
III "non-typIcal" work settmgs - or, as here, where we have what the Court m Pointe
Claire calls a "tn-partIte" relatIonshIp And we are mmdful of the mJunctIOn not to put too
much weIght on day-to-day supervIsIon or control of the employee or hIS work. However,
It seems to us that any assessment of "who IS the employer" for employment law purposes
must pay careful attentIon to who really controls the ongms and mCIdents of "work" - as
well as the work-place, and the condItIons under whIch such work WIll be performed.
Because those factors and functIons, and that seat of authonty, usually pomt m the
dIrectIOn of the "real employer"
ThIS IS not Just about "subordmatIOn" or "control" III the "master-servant"
sense - to use the quamt, but nevertheless tellmg, hIstoncal label for an "employment"
relatIonshIp Nor IS It Just about day-to-day control of the workers' tasks and the manner
m whIch they are performed. It IS about a more generalIzed and fundamental control of the
109
work and the work envIronment; and we do not read the Court III Pointe Claire as saymg
that such factors are unImportant.
On the contrary, It seems to us that they remam very Important; and that
lookmg at the work, and the work envIronment m thIS way, may help to push the decIsIOn
m one dIrectIOn rather than another - espeCIally when other factors or formal mdIcators are
ambIguous, or contradIctory, or artIficIal. And espeCIally If the "paperwork" seems at odds
wIth operatIOnal realIty
*
With that background then, we return to the facts of thIS case, and the
factors IdentIfied by the OLRB, the NLRB, and the Supreme Court of Canada, in the cases
referred to above whIch IS to say' a reVIew of the facts wIth those categones m mmd.
VII - The backeround revisited. with the York Condominium criteria in mind
In so far as "hiring" IS concerned, (the 4th Item on the York Condominium
list and also a factor mentIOned m Pointe Claire and Kansas City Star), Pro Temps
provIded a pool of relatIvely unskIlled labour for OP AC, and sent mdIvIduals to work at
OPAC, on OPAC's request, and m the numbers that OPAC requested. That pool was not
randomly selected, but rather there was an effort to match the workers' skIll set, WIth the
skIlls that OP AC saId It reqUIred. The mItIal selectIon was made by Pro Temps, and that
factor aSSIsts the OP AC argument.
110
On the other hand, It IS OP AC that defines such needed skIlls as well as the
number of workers mvolved, and whIle there IS no eVIdence that OP AC has reJected any
one "up front", there IS lIttle doubt that It preserves the nght to do so - as well as the nght
to remove anyone who does not demonstrate proficIency, or IS clearly defiCIent m any
way (WhICh as a practIcal matter only OPAC can determme) And IfOPAC dId determme
that someone should be sent back to Pro Temps (whIch may not be an entIrely accurate
way of describmg bemg "put out of her Job"), It IS not at all clear whether or when the
dIsplaced mdIvIdual would be sent somewhere else. We have very lIttle eVIdence about
that; but Mr Desan had to find work on hIS own, whIle apparently remammg on the Pro
Temps lIst,Just like any other laId off worker from OPAC, and Ms. Emanuel, got only one
other 2 week assIgnment from her entIre, many month aSSOCIatIon WIth Pro Temps.
Be that as It may, the means of engagement or "hmng" pomt mIldly
towards Pro Temps bemg the employer - but only mIldly, because, as far as thIS factor IS
concerned, the pre-selectIon of the skIll set, the routme nature of such SkIlls, and the over-
ndmg authonty of OP AC to correct any "mIstakes" mmImIzes the SIgnIficance of thIS
kmd of hmng - especIally when the SItuatIOn also resembles that of umon hlTIng hall or a
more tradItIonal "employment agency", where the agency merely refers people to work,
and the clIent has ceded to the agency the nght to make the selectIOn of prospectIve
employees, on the clIent's behalf. [As to a legal defimtIon of what an "employment
agency" does, see The Employment Agencies Act RS 0 1990, C E-13] For the facts
could also qUIte plausibly be seen m a way that essentIally makes Pro Temps the agent of
OPAC, to find persons, to OPAC's specIficatIOns, that OPAC then takes on (or at least
III
treats, operatIonally, If not nommally), as "Its" employees, and OP AC IS able to do that
precIsely because the work IS pretty mundane and remams totally subJect to OP AC's
control - as does the worker and the workplace, from a practIcal pomt of VIew Certamly,
once the agency workers are off the regIstry lIst and actIvely at work (i.e. have become
"employees") on OP AC's premIses, they don't look much dIfferent than OP AC's own
employees, msofar as theIr work, and workmg relatIonshIps are concerned.
*
With respect to the power to dismiss or discipline' there IS no eVIdence that
Pro Temps ever "dIsmIssed" an employee for mIsconduct or any other cause - eIther on ItS
own InItIatIve, or at all. Clearly It has the ostensible authonty to do so - WhICh IS to say, It
has the ostensible power to pull someone off one Job and put them on another Job, or to
tell them that they could no longer work for OP AC, or get work through Pro Temps. It
could also theoretIcally make such moves WIthout reference to OPAC or OPAC's mterests
or OPAC's mput or veto Or at least It could try
We put It that way, because there IS no dIrect eVIdence that Pro Temps
actually dId any of these thmgs over the course of the one year or so that It had a busmess
relatIonshIp WIth OP AC, and because there are practIcal constramts. For OP AC would
almost certamly be unhappy If Pro Temps removed effiCIent workers WIthout good reason,
and m any event, It IS clear that Pro Temps takes ItS cue from OP AC m thIS regard. OP AC
has the power of "effectIve recommendatIOn", and, on the eVIdence, Pro Temps SImply
acqUIesces. And there can be no doubt that OPAC has the power to turn an actIve worker,
(workmg under ItS roof, domg ItS bIddmg), mto someone who IS "unemployed"
112
However, m the mstant case, there IS no eVIdence that eIther entIty ever
mItIated a dIscIplInary dIscharge, and It IS clear that (as the case of the "too talkatIve
worker" demonstrates), It IS OP AC that has the ultImate say m such matters. And if there
were routme admomtIOns to the agency workers about work performance or work
practIces, they were, so far as we know, admmIstered by OP AC supervIsors who were on
the Job wIth them There IS no eVIdence that they catne from "Janet"
"DIscIplIne" was not a sIgmficant feature of the relatIonshIp under reVIew,
and It IS mterestmg to note, that we do not even have before us the kmd of concrete
eVIdence that arbItrator Howe recorded m the followmg passage m hIS award
"As mdIcated above, IMP ACT [the name of the agency] had ItS
own wntten polICIes and procedures whIch workers were oblIged
to follow, and dIsCIplIned or dIscharged workers for breachmg
them. One form of dIsCIplIne whIch IMP ACT Imposed on workers
was removal from an assIgnment. If the worker's mIscol!duct was
deemed by IMP ACT to warrant a one or two day suspenSIOn,
IMP ACT would remove the worker from the assIgnment for that.
And send another worker m a replacement. More senous
mIsconduct would result m permanent removal from the
aSSIgnment or m the worker's dIscharge from IMP ACT"
We have no eVIdence like that; and It WIll be recalled that despIte such
mdIcatIOns of agency control over the mdIvIdual's work lIfe, ArbItrator Howe still found,
on balance, that the weIght of the other factors - espeCIally control of the work and the
work enVIronment - pomted towards OP AC bemg the employer rather than IMP ACT
II)
Nor do we have any contract of employment or polIcy manual, or other
document eVIdencmg "organIzatIOn" and rules, to whIch workers must adhere If they wIsh
to be a part of It (I.e. part of the Pro Temps "organIzatIOn", such as It IS) All that we heard
about, was that they were not supposed to take up "permanent employment" wIth a clIent
for three months, and there IS no eVIdence of Its applIcatIon. And we heard that workers
were names on a lIst, who only became "real employees" (workmg for wages), when they
were assIgned to "work" for someone else.
It would have been a pomt m the employer's favour, If Pro Temps had
unIlaterally pulled someone off the Job, and sent them somewhere else - eIther because Pro
Temps had deCIded that It would be m ItS own mterest to do so, or because one of "ItS
workers" was needed somewhere else, to fulfill some commItment to some other Pro
Temps chent. That IS the kmd of thmg that IS sometImes seen m other
"subcontractmg/contractmg-out cases", (for example, secunty guards or mamtenance
employees, who may serve several clIents of theIr "real employer" - the subcontractor -
and may be SWItched from SIte to SIte on the dIrectIOn of that subcontractor); and that IS
the kmd of eVIdence that would Illustrate not Just "theoretIcal" authonty over the worker's
SItuatIOn, but also that It can actually be exerCIsed. But that Isn't the eVIdence here.
The eVIdence here IS mIxed but on balance pomts more strongly towards
OP AC havmg the deCISIve power to dIsclplme or dIscharge workers, as OP AC may
determme, based upon OPAC's own assessment of the sItuatIOn, and Pro Temps appears
to be more or less a rubber stamp for that determmatIon. And, of course, any actual
114
workplace mIsconduct or faIlures would only Impact on OPAC's mterests, m so far as any
"termmatIon" IS related to work or workflow For that too IS controlled exclusIvely by
OP AC Moreover, only OP AC would be m a posItIon to wItness any untoward behavIOur,
and be m a posItIon to act upon It, or Ignore It.
*
With respect to the first factor m the York Condominium list: "the party
exercising direction and control over the employees performing the work", the weIght of
the eVIdence pomts decIsIVely towards OP AC havmg fundamental control over the work
and the worker and the workplace. The dIsputed mdIVIduals were under the dIrect
supervIsIon and control of OP AC and of OP AC employees, who allocated and scheduled
theIr work, and who helped the agency workers out as necessary, and even momtored the
hours of work for WhICh payment purposes.
However, OP AC had control over the work, and the workers, and the
busmess establIshment, m other, more general ways, as well.
The work ongmated exclusIvely WIth OPAC, and thus was OPAC's work,
done on OPAC's premIses, to OPAC's day-to-day specIficatIons, under OPAC's
supervISIon, m conJunctIon (the "buddy system"), wIth OPAC's own employees. To the
extent that employment IS a "wage-work bargam", the work IS OP AC's and the employees
were "workmg" for OP AC - WhICh IS what would have appeared to be the case, If an
outsIder had VIsIted the work place and seen the workers, workmg together, wIthout
knowmg that some of them were "agency workers" and some of them were OP AC's own
II "
employees. The busmess orgamzatIon m whIch the work IS done, IS OPAC's busmess
orgamzatIOn.
There IS no eVIdence that Pro Temps provIded any of the tools or
eqUIpment WhICh the workers were to use m conJunctIon WIth theIr work. That too was
provIded by the clIent, OPAC, on OPAC's premIses. Any trammg that was reqUIred (albeIt
not much was needed) was also provIded by OP AC, and conversely, there IS no eVIdence
that Pro Temps provIded trammg of any kmd, for thIS or any other work assIgIllllent, or
more generally, as part of a plan of skIlls enhancement or career development. Indeed, on
the eVIdence before US, It IS a lIttle artIficIal to even talk about someone havmg a "career",
WIth an agency like Pro Temps, where mdIvIduals are eIther Just names on a lIst, or to the
extent that they are workmg or gammg expenence, It IS WIth, and m, some other busmess
organIzatIOn.
But smce the Court m Pointe Claire mentIOned that factor, we do as well.
there was no "career development" on the eVIdence before us, and the eXIstence of the
"three month rule" suggests that many workers WIll not want a long-term relatIOnshIp WIth
Pro Temps - a relatIonshIp of neceSSIty for unemployed workers, rather than unfettered
chOIce for a "career" (WhICh makes the SItuatIOn somewhat dIfferent from the one before
arbItrator Knopf m Carecor) For as we have already noted above' It IS one of the
cunosItIes of thIS work settmg, that the mdIvIduals only demonstrate one of the claSSIcal
badges of "employment", when they are "workmg" for somebody other than theIr nommal
116
employer, m the workplace and under the supervIsIon, and to the specIficatIOns, of that
"someone else"
The agency workers were mtermmgled wIth, and mtegrated mto, the OP AC
workforce, domg broadly sImIlar work m conJunctIon wIth OP AC 's own employees. That
IS why If a non-legally tramed observer, were surveymg the scene at the Eglmton Ave.
work sIte and were asked who was the "employer", the sItuatIon "on the ground" would
suggest that It was OP AC Pro Temps was nowhere to be seen, and played lIttle or no role
m any of these work related actIVItIes.
Nor dId Pro Temps have any influence over the work or the work settmg,
or the workplace, or the work groups (whIch were bUIlt by OP AC and mcluded OP AC
employees), or the rhythm of work. That was governed almost exclUSIvely by OP AC and
OP AC's needs. And, It IS mterestmg to note, that, at least for Mr Desan, there weren't a
lot of dIfferences after he became a "permanent employee" of OP AC - other than the
manner m whIch hIS wages were paId to hIm (by OP AC dIrectly, rather than through the
aegIS of Pro Temps), and no doubt the opportumttes open to hIm, were greater, now that
he IS permanently settled mto the OP AC orgamzatIOn. But, of course, the relevant
comparator IS not permanent employees like Mr Desan, but rather temporary employees
who are specIfically mentIOned m the collectIve agreement.
117
When some workers were reqUIred OP AC summoned them, and when
OP AC dectded that a mght ShIft was reqUIred, It was laId on. But the work, the work
group, the work hours, and the work envIronment were all controlled by OP AC
It IS as If Ford Motor company had decIded to plug some agency workers
mto slots on Its auto assembly lIne m Windsor, then claImed that they were not
"employees" m the eXIstmg CA W bargammg umt, covered by the eXIstmg CA W
collectIve agreement - a hypothetIcal WhICh we mentIOn, because Ford successfully
claImed precIsely that, when the work m questIOn (secunty servIces) was ancillary to Its
regular productIOn process, and Ford had also taken steps to dIvorce Itself from the actual
day to day supervIsIon and control of those workers (See: Ford Motor Company of
Canada Limited, cited supra)
Here, though, the work IS not ancillary to the core functIOns of OP AC, and
to the extent that "integratIon" IS gIven separate SIgnIficance, (It IS mentIoned m both
Pointe Claire and, mdIrectly, m Kansas City Star), these workers are domg bargammg
umt work, as part of the OP AC busmess - albeIt, not as a permanent addItIOn to that
busmess. But then, neIther are ArtIcle 5 temporary employees. And If It IS saId that
"temporanness" reduces the Importance of mtegratIOn and mtermmglmg, we note once
agam that "temporanness" IS speCIfically addressed m ArtIcle 2, and that many of these
workers (mc1udmg the two that we heard from) are far from temporary
118
Moreover, looked at through the pnsm of the kmds of thmgs that are
subJect to regulatory legIslatIon, It IS OPAC that has actual control over many of the thmgs
that the LegIslature has decIded need to be regulated (an observatIon WhICh we make,
parenthetIcally, and wIthout suggestmg, let alone decIdmg, that any partIcular
employment-related statute applIes m thIS SItuatIon) But we are also constramed to
observe - equally parenthetIcally and hypothetIcally - that If the workers' wage payments
were made dIrectly to the agency workers, rather than bemg routed through Pro Temps,
we doubt that there would be much questIOn about who the "real employer" was.
*
The agency workers clearly perceive Pro Temps to be their employer; and
both Pro Temps and OP AC went to conSIderable lengths to remforce that perceptIOn (we
do not suggest that there IS anythmg smIster or untoward about thIS) That IS a factor that
pomts toward Pro Temps bemg theIr employer
However It also serves to hIghlIght the artIfiCIalIty of It all. For If an
employee had to work overtIme, for example, (whICh would be a determmatIOn made by
OP AC), OP AC would presumably have to contact Pro Temps, whIch m turn would have
to contact the worker for any reqUIred consent [see sectIons 17-19 of the Employment
Standards Act] and then Pro Temps would have to contact OP AC agam, to say that It was
alnght - m respect of each employee who was needed to work overtIme
What a stIlted and artIfiCIal exerCIse thIS IS - even assummg that It actually
happened that way (Recall that whIle we know that overtIme IS payable at tIme and a half,
Ill)
after 44 hours, and that such costs are dIrectly passed on to OP AC, lock-step, premIUm
hour by premIUm hour, we do not know whether overtIme was worked or how It was
admmIstered).
SImIlarly, If an employee needed some tIme off (I.e. tIme away from doing
the work that OP AC had assIgned to her and expected her to do - perhaps a day or two off
to deal wIth a famIly emergency), that would request would follow the CIrcUItous route
mentIoned above. Once agam, If the formula were followed, Pro Temps would have to
commUnIcate WIth OP AC to assess the Impact before grantmg permISSIon. a round-about
exercIse that, qUIte frankly, looks totally artIfiCIal and contnved. For of course, only
OP AC would be meonvenIenced by gIvmg such "tIme off work" - the ''work'' bemg
"workmg for OP AC", and there IS no eVIdence that any of the agency workers ever get
any paId tIme off - regardless of how long they are assocIated WIth Pro Temps, or how
long they work for Its clIents.
Now, It would have been an mterestmg pIece of eVIdence, If Pro Temps had
acted unIlaterally, pulhng a worker offthe Job on ItS own mItIatIve WIthout c1eanng It WIth
OP AC first; but not only IS there no eVIdence that thIS ever happened, there IS every reason
to beheve that It would be dealt WIth Just like the "too talkatIve worker" Pro Temps
would do what the chent wanted It to do Pro Temps would act as the arm of OP AC,
rather than as an mdependent actor, m Its own nght.
120
We sImply do not know how these thmgs were actually worked out day-to-
day, whether these kmds of Issues arose or how they got resolved - although It seems
unlikely that they could be handled by a phone call or a VISIt, every week or two The
regular and matenal mvolvement of "Janet" m makmg such decIsIOns seekmg or
grantmg permIssIOns or consents as she thought appropnate, and not Just bemg a rubber
stamp for OP AC - mIght have been an useful mdIcator of where authonty lIes (or would
at least mdIcate that Pro Temps had a larger share of It) However, we dId not hear from
Janet; and unlike some ofthe cases m thIS area, there was no "on SIte" supervisor from Pro
Temps, to keep an eye on thmgs - and to exerCIse the kmd of control or dIscIplme whIch
would strengthen the ImpreSSIOn, that Pro Temps was the workers' employer
What can be SaId, therefore, IS that WIth respect to control of the "work"
and "the work envnonment" and the work SItuatIon of the dIsputed workers, the eVIdence
does not pomt deCISIVely towards Pro Temps bemg "the employer" -- even If the
employees perceIved OP AC to be "theIr employer", and that was the natne that appeared
on then pay cheques (ifthere were any pay cheques) In fact, the reverse IS true.
*
In thIS regard It IS also mterestmg to note that regardless of what they had
been told, the employees also beheved that It was appropnate to notIfy OP AC if they were
gomg to be late or mISS work for some reason, or needed tIme off -- a sensible and
commendable mdIcatIon of fidelIty, WhICh accords WIth the realItIes of the SItuatIon.
SImIlarly, Ms. Emanuel's vacatIOn and return thereafter, were worked out jomtly between
121
Pro Temps and OPAC OP AC wanted her back ("rehIred" her?), and Pro Temps
confirmed It.
*
Pro Temps mamtams any paperwork that may be reqUIred (we dId not see
It), and does the payroll administration ThIS IS the strongest factor pomtmg III favour of
Pro Temps bemg "the employer"
*
It IS however, a factor whIch has to be weIghed wIth some care - beanng III
mmd the dIstmctIon between form and substance, and the ease wIth whIch thIS can be
determmed umlaterally, and wIthout regard to the actual realItIes of the SItuatIOn.
Because, whIle Pro Temps, makes sure that the reqUIred wage mOnIes are
funnelIed to the worker, wIth appropnate deductIOns, (and takes ItS surcharge of 55%), the
money to do so comes exclUSIvely from OP AC, in dIrect proportIon to the work that the
dIsputed persons do for OP AC
And that also has to be kept m mmd when one conSIders the "burden of
remuneration" - the second Item m the York Condominium catalogue, and a factor
mentIoned by the Court m Pointe Claire, as well.
*
OPAC pays Pro Temps so that Pro Temps, m turn, can pay the workers
(less the Pro Temps mark up), but the payments from OPAC to Pro Temps are m dIrect
122
relatIon to the number of hours reqUIred, and worked, and momtored, and recorded, and
SIgned off, by OP AC
Thus whIle OP AC does not pay the workers dIrectly, they are paId
mdIrectly by OP AC m dIrect relatIOn to the number of hours worked and m the atnount
agreed upon - whIch on the on the eVIdence before us, certamly appears to be have been
effectIvely stIpulated by OP AC - for the hours put m by the workers at, and for, OP AC
If anythmg, thIS factor pomts more strongly to OP AC bemg the party that
bears the real "burden of remuneratIon" - despIte the paperwork respectmg salary
admmIstratIOn, and there IS very lIttle eVIdence from Pro Temps that It actually shoulders
any other burdens, economIc or otherwIse (for example benefits), that are not fully
shouldered and financed, lockstep, by OP AC
*
In fact, there IS very lIttle eVIdence that Pro Temps shoulders any (or at
least many) of the responsibIlItIes typIcally assocIated wIth "employment" and bemg "the
employer" (for example statutory holIdays under the Employment Standards Act - the
eVIdence IS ambIguous m thIS regard), nor, for example, do we know whether Pro Temp
even carnes msurance m respect of ItS nommal employees, or whether that, too, IS passed
over to the clIent. And while there may very well be a valId "legal reasons" for all of these
thmgs, the result IS that we lack some helpful mdlcatIOns that mIght pomt towards Pro
Temps bemg "the employer" shoulderIng some mdependent burden, and not Just makmg
121 \
deductIOns from sums forwarded to It by Pro Temps, and provIdmg the supportmg
paperwork (based on mformatlOn receIved from OP AC).
It IS clear that whIle OP AC negotIated pay rates wIth Pro Temps, It IS
OP AC whIch matenally determmes what that pay rate wIll be, and thus what the workers
WIll actually be gettmg. Pro Temps real mterest and pomt of control, IS over the mark up
rate the amount that IS paId on top of what the worker gets, as Pro Temps fee to cover
expenses and profit for findmg workers wIllmg to work at the pnce that OP AC IS prepared
to pay
There IS no eVIdence that over the course of the year or so that Pro Temps
was ostensibly "on the scene" at OP AC, there was any modIficatIOn of any of these wage
rates or the wage formula -- whIch agam IS another "negatIve", but would have been a
potent mdIcator of ItS control over thIS aspect of the work and the worker Wage mcreases,
performance-based mcreases or some worker evaluatIOn process done by Pro Temps,
whIch led to some benefit (or perhaps detnment) to the worker, would all have been
mdIcators of a more actIve role for Pro Temps. But there was none of that
The wage rate was pretty much cut and dned and substantIally controlled
by OP AC's WIllIngness and abIlIty to pay OP AC effectIvely set these economIC
parameters, and once stIpulated by OP AC, all else followed.
124
On balance, we are mchned to accept the trade umon's charactenzatIOn that
Pro Temps was a mere conduit of momes from OPAC to the workers under OPAC 's
supervIsIon and control, and whatever "paper traIl" there IS WIth respect payroll
admmIstratIon, IS not truly mdIcatIve of real control over thIS economIC aspect of the
employment relatIonshIp
Such paperwork documents, but does not Illummate, the real smews of
control. In our VIew, the real burden of remuneratIOn, IS born by OPAC
*
The agency workers and theIr work are both mtegrated mto the OP AC
orgamzatIOnal format, because they work on OP AC premIses, to OP AC's speCIficatIons,
and also because they work IS done m conJunctIOn wIth OP AC employees, wIth whom the
agency workers are phYSICally and functIOnally mtermmgled. If the agency workers are
workmg for wages, they are domg so as part of the clIent orgamzatIon, and when they are
not workmg for wages, they are Just names on the lIst -- or perhaps like Mr Desan, are
actually workmg for someone else.
Thus, If "orgamzatlOnal mtegratIon" or bemg "part of the busmess" IS an
mdependent test -- or at least an mdependent perspectIve, or way of lookmg at thmgs --
then when the agency workers are actmg m the capaCIty of "employees", they were more
closely aSSOCIated wIth OP AC, than they were wIth the Pro Temps. And once agam, It IS
mstructIve to note how sImIlar Mr Desan's current sItuatIOn IS, WIth the sItuatIOn that he
was m when he was an agency worker - both 111 respect of the kmd of work that he was
125
domg, and the work context (although, of course, hIS tenus of work are supenor, now that
he IS a permanent employee, and IS covered by the collectIve agreement)
ThIs IS not a sItuatIOn m whIch OP AC has turned over a "Job of work" to
Pro Temps, and told Pro Temps, m effect to "use your people to do It"
Rather, Pro Temps "people" were gIven to OP AC to use and dIrect m
conJunctIOn wIth OP AC's own employees, domg the same work.
*
ThIS phYSIcal Jlltermmghng and day-to-day control flows from the fact that
the actual work that the dIsputed persons were domg was done on OPAC's premIses, and
was more closely connected to the regular operatIOns of OP AC than somethmg (for
example), like mamtenance or secunty or even IT consultmg servIces mIght be. What the
agency workers were domg, were not penpheral functIOns, anCIllary to OP AC's mam
busmess, or SIgnIficantly dIfferent from what bargammg umt employees were domg
SImultaneously (as m Ford Motor Company, supra) Nor were many of these workers even
"temporary" In the usual sense of that word. For to borrow the words of ArbItrator Howe
m the earlIer deCISIon.
The mstant case does not mvolve "one day 'one-shot' SItuatIons"
such as were found by arbItrator BeattIe m the Metro-Calgary case
to be valId mstances of contractmg m, when vIewed "m an overall
commonsense manner" m a context m whIch the day-to-day
arrangements whIch the hospItal made for agency nurses "we're m
good part an accommodatIOn to the employer's own nurses" [p
277 L.A.C ] Nor IS It IS SItuatIOn analogous to the Carecor case,
m whIch agencIes supplIed nurses to hospItals on a "temporary ad
hoc baSIS" [p 429] for one ShIft, for part of a week, or a week or
perhaps several weeks m lImIted cases [ p 411 L.A.C], and a
126
context m whIch agency nurses, who where the "nomads of the
narratIve world", coastal alIgn themselves wIth nursmg agencIes
"to supplement mcome, to control the amount they WIll work and
to have work m locatIOns of theIr chOIce" [p 427 L.A.C ], rather
than alIgnmg themselves to one hospItal and thereby subJectmg
themselves to the hospItal's needs and demands, mcludlllg the
responsibIlIty to remam on call and be avaIlable to work there. The
mstant case IS also factually dIstmct from Re Falconbridge Ltd.,
Kidd Metallurgical Div and C.A. W Local 599 (polIcy gnevance),
m WhICh the company had a long-standmg practIce of usmg
agency workers to covert onus IS another absences, and m WhICh
the umon, although aware that these were agency people workmg
on SIte, dId not assert dunng the certIficatIOn process, nor dunng
the collectIve bargammg whIch followed, that they were company
employees. Extend the ratIOnale adopted m those of factually
dIscreet cases mvolve the agency workers brought m for relatIvely
short pen ods of tIme to the facts of the mstant case, m whIch Ms.
Hasulo worked exclUSIvely at MP AC's Windsor office for nme
and one half months, would be to extend It beyond ItS legItImate
and that and to sanctIOn an undermmmg of the mtegnty of the
bargammg unIt and the negotIated wage rates contamed m the
Agreement. NeIther workload backlogs nor budgetary
consIderatIOns exempt the Employer from Its oblIgatIOns under the
Agreement whIch, as llldIcated above, contams a specIfic
provIsIOns regardmg temporary employees. As noted by arbItrator
Brent m Lincoln County Board of Education and C. U.P.E., Lac.
1442 (policy grievance) at p 8, although arbItrators have applIed a
vanety of approaches, the underlymg theme m the vanous tests
proposed and used "IS that when consIdenng the questIOn boards
of arbItratIOn should be careful not to allow employers to use some
means of aVOIdmg theIr collectIve agreement responsibIlItIes"
ThIS passage, (like IKO), smacks a lIttle too much of "schemes" and
"motIve" for our likmg; but the fact IS, that a number of employees put m SIgnIficant
penods of tIme workmg for OP AC, and we have very lIttle eVIdence of where any of them
were otherwIse engaged, or when, or how often. And If the questIOn IS asked speCIfically
whether Mr Desan or Ms Emanuel wcrc more connccted "as employees of someone" to
OP AC or to Pro Temps, for the penod 111 questIOn, thcn we are mchned to say that the
I
answer would be: "OP AC" - where they came to work day m and day out, on an ongomg
and regular basIs, for months.
*
Finally, It seems to us that there IS nothmg anomalous or mcongruous about
finding that the agency workers were, m realIty, "temporary employees" of OP AC It
would SImply reqUIre OP AC to bnng theIr terms mto lIne wIth those prescribed m the
collectIve agreement for "temporary employees" - mdeed, mto lIne wIth those of whatever
"temporary employees" may have been assIgned by OP AC to work on the TIP proJect. It
mIght also reqUIre OP AC to shoulder the admmIstratIve burden of pay-roll admmIstratIon,
(whIch, lIke the applIcatIon of the collectIve agreement Itself, OP AC has clearly sought to
aVOId), and not Just the economIC burden of paYIng wages to these workers.
However, in our VIew, the findmg urged upon us by the UnIon does not
produce ImpractIcal or IrratIonal results, and It does not (or at least does not automatIcally)
result m the oddIty of two sImultaneous employers for the same employee, for the same
work done, at the same tIme - an oddIty which troubled the dIssentmg Judge in Pointe
Claire, but mterestmgly dId not trouble the maJonty Judges at all, and dId not trouble the
Court m Downtown Eatery eIther
Moreover, any mclmatIOn that we mIght have to be concerned about
collapsmg thIS busmess arrangement and affixmg legal nghts m a manner other than what
Pro Temps and OPAC would clearly prefer, must be tempered by the realIzatIOn that there
IS a very well-developed body of arbItral and OLRB case law, domg Just that, m broadly
128
sImIlar CIrcumstances (likewIse the Pointe Claire decIsIOn, where the decIsIOn of the
Quebec Labour Court - that the employment agency was not "the employer" - was left
undIsturbed).
Fmally, It seems to us that OPAC had to know (or should have known) that
ItS arrangement mIght be subJect to reVIew (just as the UnIon had to know that m the
absence of some express restnchon on outflows of bargammg UnIt work, It was takmg a
nsk that thIS mIght happen), and that any mIsapprehensIOn or expectatIon that OP AC may
have had that such case law would never be apTJlied to it, was surely dIspelled by the
challenge, and the ultImate result, m the case that came before ArbItrator Howe a case
that was wendmg ItS way through the gnevance-arbItratIOn procedure, at the tIme that the
relatIonshIp wIth Pro Temps was consummated.
To be clear we do not suggest that we are "bound" by ArbItrator Howe's
findmg. ThIS IS not a SItuatIon, where, for exatnple, the OLRB has determmed that the
dIsputed mdIvIduals were "employees" of Pro Temps for collectIve bargammg purposes,
under the Labour Relations Act (WhICh determmatIon would also have gIven OPAC's
argument, an entIrely dIfferent cast), so It would be anomalous for an arbItrator to
conclude that they were not covered by the resultmg collectIve agreement. Rather, we are
bemg asked to reach a dIfferent conclusIOn than another expenenced arbItrator has
reached, mvolvmg the same clause, under the same collectIve agreement, on the same
legal Issue, and on facts that are analytIcally very SImIlar - mdeed, that were stronger and
were more m OP AC' s favour, m some respccts, than m the case before us.
129
*
In the cIrcumstances, we do not thmk that we should lIghtly reach a
dIfferent conclUSIOn, unless we thmk that there was somcthmg fundamentally wrong WIth
ArbItrator Howe's analysIs, and/or the result whIch he reached. And we don't.
*
However, we are concerned about two aspects of the case before us.
*
We are somewhat troubled that the result to whIch we are dnven, IS
mconsIstent WIth the expectatIOns of a group of workers who wIll find themselves,
unwIttmgly, subJect to the terms of the collectIve agreement, WhIch they had no hand m
fashIOnIng; and under that collectIve agreement, they WIll lose the nght to negotIate on
theIr own, or even to enforce statutory or Charter nghts (at least msofar as theIr SItuatIOn
at OP AC was concerned) However thIS concern IS not unlike that of any other worker
who comes to work m a UnIOnIzed enVIronment; and It IS tempered by the fact that a clear
delmeatIon that OP AC IS theIr employer, would m the present case, likely clanfy and
Improve then nghts - both under the collectIve agreement, and qUIte probably under any
employment-related statutes, as well (because there would a clear IdentIficatIOn of the
employer and holder of the statutory burdens of bemg one). Nor does such findmg
mterfere WIth whatever relatIOnshIp they WIsh to mamtam WIth Pro Temps, or theIr access
to work, through Pro Temps, at some other workplace.
We are also troubled (as we have observed an earlIer part of thIS declSlon),
that the global chOIces that were put to us m thIS case, may not gIve suffiCIent weIght to
130
the sItuatIon of that segment of the "agency worker group" who truly were, very
temporary However, we do not thmk that these vanatlOns wlthm that group are sufficIent
grounds to reach a dIfferent conclusIOn than arbItrator Howe, when we are asked to make
one of the two global chOIces outlmed m parts I and II OfthIS Award.
Both partIes put then case m these "black and whIte", "global terms", and
we have answered accordmgly
*
In the result, whIle the eVIdence IS mIxed, and the vanous factors laId out m
York Condominium, pomt m dIfferent dIrectIOns, we are persuaded to reach the same
conclusIOn that ArbItrator Howe dId. that the agency workers are "employees" of OP AC,
for the purposes of the collectIve agreement.
VIII - Disposition
For the foregomg reasons, we find and declare' that the agency workers
were employees of OP AC, and that the faIlure to apply the collectIve agreement to them -
and to treat them like "temporary employees" - was a breach of the collectIve agreement.
*
However, m our VIew, that IS the only determmatIOn that we should make
at thIS stage.
*
HI
In the course of argument, the Umon reserved It nght to make further
representatIons III respect of broader remedIes, than that - WhICh IS to say, to seek
somethmg beyond the payment of umon dues, whIch IS the only other remedy that IS
mentIoned on the face of the" gnevance", whIch launched thIS proceedmg.
However, we dId not have full argument WIth respect to these other
remedIal questIOns -- WhICh of course may raIse complIcated Issues m respect of 64
separate employment sItuatIons, as well as Issues about what remedIes may be avaIlable
under thIS collectIve agreement, for a "polIcy gnevance" [Recall that ArbItrator Howe's
case, mvolve mdIvIdual employee claIms, so that the UnIon knows how to make them, and
recall as well that the mdIvIdual workers were given notIce of thIS proceedmg, but
declmed to partIcIpate]
*
Accordmgly, m all CIrcumstances, we conSIder It appropnate, at least at thIS
stage, to confine our determmatIon to the declaratIOn set out above, and a dIrectIOn that
OP AC pay over to the UnIon, a sum of money, m respect of the UnIon dues, that should
have been paId, m respect of the 64 "employees" who, by our declaratIon, the collectIve
agreement applIed to at the relevant tIme.
It IS so ordered.
In accordance WIth the agreement of partIes, the panel WIll remam seIzed m
the event that there IS any dIfficulty m calculatmg that amount; and m the event that It
132
becomes necessary to consIder any further remedy, to whIch the UnIon may claIm IS
entItled. And of course, In thIS regard, both partIeS will be free to make whatever
arguments they thmk appropnate at that tIme.
tJG
Dated at Toronto thIS r.o day of October, 2006
R.O MacDowell.
I agree "ffamda .M.unt..MadiU"
Pamela Munt-MadIlI
I dIssent u~~"
( attached)
Robert GallIvan
111
DISSENT OF RJ. GALLI V AN
With all due respect I must dIsagree With the ChaIr's analYSIS whIch III my VIew IS
better SUIted to some other collectIve agreement than the one before us
The key proVIsIons of the agreement are quoted by the ChaIr III the Award, but
they are worth repeatmg:
ARTICLE 1 - PURPOSE
I 01 The purpose of thIS Agreement IS to estabhsh and mallltam workmg condItIons,
hours of work and wages WIth respect to employees covered by thIS Agreement
and to proVIde for a prompt and orderly method of settllllg complalllts or
gnevances whIch mIght anse hereunder
1 02 ThIS Agreement sets forth the entIre Agreement on rates of pay hours of work
and other conditIons of employment. Amendments to thIS Agreement may only
be made m wTltmg on the agreement of both partIes. There are no representatIOns,
warrantIes or conditIons that aff€X."! the nghts of the partIes and employees, save
and except those specIfically set out m thIS Agreement.
ARTICLE 2 - RECOGNITIO",
201 The Employer recognIzes the Lmon as the sole and excluslve bargammg agent for
all employees of the Employer In the ProvInce of Ontano save and except
supervIsors (other than \.1anager \.tappmg ServIces and \.tanager Data SerVIces),
managers, those above the rank of supervIsors and managers, those employed m a
confidentIal capaCIty m matters relatmg to labour relatIOns and those III the office
of the PreSIdent and CAO
2.02 For greater certamty~ such emplo)ees mclude re"-sular and temporary employees,
students, and such other employees as may be mutually agreed
- 2-
ARTICLE 4 - MANAGEMENT RIGHTS
40] The Union acknowledges that it IS the exclusIve nght of the Employer to'
(a) matntam order, dIsCIplIne and effiCIency;
(b) hIre, transfer, classIfy, asSIgn, appomt, promote, demote, appraIse, tratn
develop, layoff and recall employees;
(c) dIscIplme and dIscharge employees for Just cause, except that probatIOnary
employees may be dIscharged Without cause;
(d) generally to manage the enterpnse m whIch the Employer IS engaged and
Without restnctmg the generalIty of the foregomg, the nght to plan, direct
and control operatIOns, facilItIes, programs, systems and procedures, direct
its personnel, determme complement, organIzatIOn, methods and the
number, locatIOn and classIficatIOn of personnel reqUIred from time to tIme,
the number and locatIon of operatIOns, buildings, eqUIpment and facilItIes,
the serviceS to be performed, the schedulIng of asSIgnments and work, the
extensIon, limItation, curtailment or cessatIon of operatIons and all other
nghts and responsibilItIes not specIfically modified elscwhere m thIs
Agreement.
402 The Employer shall exerCIse the above nghts m a manner consIstent With the
terms of the CollectIve Agreement.
Arbitration
10.21 The Board of ArbItratIOn or sole arbItrator shall not be authonzcd to make any
deCISion mconsIstent 'WIth the proVISIons of thIS Agreement, nor to alter, modIfy,
add to or amend any part of thIS Agreement.
Clearly ArtIcles 1.02 and 4 have been extraordmarily carefully drafted to preserve
for thIS employer all tradItIonal prerogatIves mherent m the ownershIp and management
of a busmess (except to the same extent any busmess IS constraIned by law). and except
to the limIted extent It has agreed to be fettered by thc collectIve agreement.
By takmg the plam mearung of the contract proVISIons quoted above, It IS apparent
that thIS employer IS entItled to deCIde how It wants Its work to be done. As I read the
- 3-
agreement, It can hIre "regular" employees, hire "temporary" employees, or contract With
others to do Its work either on or off Its premIses. If It decIdes the most effectIve way to
achIeve Its busmess obJectives IS to hrre "regular" or "temporary" employees then those
persons (except for the exclUSIOns m ArtIcle 2.01) are covered by the collectIve
agreement. If It deCIdes, as m thIs case, that the best way to get a backlog of work caught
up IS by entenng mto a contract With another employer for help, nothIng m thIs
agreement restrams management's chOIce of that legItrmate busmess solutIOn. (I say
"legItImate" because If an employer makes a staffing deCISIon for bad froth reasons m
VIolatIon of legislatIon such as the Labour RelatIons Act or a Human Rights Acts, then
other conSIderatIons apply, but such has not been alleged III the case before us.)
Furthermore, nothmg m thIs contract compels the employer to hIre employees
on a "temporary" basIS (the duratIon of whIch IS undefined) If It deCIdes to meet Its
short-term staffing needs by some other means. The fact that the contract sets
out employment terms for those that MP AC (OP AC) decIdes to hIre dIrectly onto Its
payroll as "temporary" cannot ObjectIvely m my view be mterpreted under this contract
as reqUInng the employer to use that classIficatIon of persons If It chooses for valId
busmess reasons not to do so. To Imply as the ChaIr does here that the mere eXIstence of
such a category m the contract means the employer should have used It m the
CIrcumstances before us would reqUIre, gIven ArtIcle 1 02, very specIfic language to that
effect. No such language can be found m thIs collectIve agreement.
Accordmg to the uncontested eVIdenee, the unIon trIed but failed to negotIate some
-4-
language Into the contract to restraIn the employer's freedom to make the most effiCIent
staffing decIsIons In bargammg for the agreement Just precedmg the one under whIch
thIS gnevance was filed, the union wanted the contract amended to ban the contactmg of
work to outsIders The employer refused to so hobble Itself and as a result, as the ChaIr
notes, " unhke some collective agreements, the one that IS currently before US, does not
contam any prohibItIon on 'contractmg out' nor IS there any restnctlon on transferrIng
'bargammg umt work' to 'outsIders' ..
Shortly after the UnIon's faIlure to achIeve Its proposed contract amendment It
gneved the employer's decIsIon to hire an employment agencv to provIde two agency
employees to aSSIst the Windsor office to catch up on a backlog of work resultmg from
mUnicIpal amalgamation m the ~mdsor-Essex area (and who ended up workmg more
than nme months compared to the two to three months for most of the asSIgnments m our
case) That grtevance was heard by arbItrator Howe (whose deCISIon IS rehed upon by the
ChaIr here) who effectIvely read mto the collectIVe agreement the sort of restnctlon on
management's abihty to deCIde hO\l. to meet Its busmess needs WhICh the union had Just
faded to negotIate Into the contract, although It appears from hIS award that he may not
have been aware of the umon's failed demand to change the agreement Nevertheless,
m my respectful VIew Mr Howe s award was wrongly deCIded for reading such a
proVISIon mto the contract contraf\ to ArtIcle 1 02 "There are no representatIons,
warrantIes or conditIons that affect the nghts of the partlcs, save and except those
specificall) 5et out in this 4grcemem" (un emphasl<;' and Ignores i\rtIcle 1021 definIng
the lImIts on an arbItrator's JunsdIctlOn
-5-
Smce MP AC refused the unIon demand to amend the contract (we were not told
what concessIOns, If any, It may have made to the unIon ill return for the latter
abandomng Its demand) the employer has retaIned for itself the prerogative of deciding
how It gets Its work done. If It chooses to temporarily supplement Its eXIstIng workforce
by entering mto a comprehensIve legalIstIc contract With an employment agency, that's a
deCISIOn It IS free to make. If, as here, It chooses to move qUIckly With a rmmmum of
documented legal formalIty to meet an urgent bUSIness need, nothing in its union
agreement prevents It from doing so. Me V olkes' testImony was unchallenged that It
would have been too slow - gIven eXIStIng resources - for MP AC to qUIckly recrmt,
scr..en, test and hire a large number of people when an outsIde agency - Pro Temps -
already had tested, qualIfied and readily available employees who could be
asSIgned to MP AC on short notIce. Thus whether or not a "true contracting out" took
place (the test Mr Howe applIed) IS m my VIew Irrelevant gIven the wording of the
carefully crafted protection of the employer's prerogatIves and lirmts of arbItral reVIew
underthtscontract.
The employer here IS :free to decIde how It gets Its work done, eIther by Its eXIstmg
unIomzed workforce, by adding to that complement, or by havmg others do It. That
nght to choose among optIons IS not absolute - It cannot be done m bad fatth by
attempting to undermme the umon for example - wtuch the Charr acknowledges did not
occur here (nor III the Howe case). In my VIew the proper mterpretatlon of ArtIcles 1 02
and 4 Ol(d) of the contract would preclude a decISIon such as that made by Me Howe
and such as the Charr awards here. OthefWlse, It IS difficult to see what labour relatlons
-6
purposes those ArtIcles serve
If I am wrong m that mterpretatIon of ArtIcles I 02 and 4 then I would apply the
seven-fold test set out by the Ontano Labour RelatIons Board m }ork Condominium but
come to a dIfferent conclUSIOn on the actual facts before us than does the ChaIr
1 DIrectIon and Control Over Emplovees
The Supreme Court m ItS Pomte ClaIre deCISion (referred to by the ChaIr and rehed
upon by Ms PIcher m lKO lndustrie"l ruled that m determmmg the true employer m an
agency sItuatIon a comprehensIve approach should be taken to determme whIch of two
employers" exercIses the greatest control over all aspects of theIr work and not ol1h
over the supervision of their day-to-day work" (my emphasiS, and where m my respectful
vIew our ChaIr places undue emphaSIS) Usmg the Court's "comprehensIve approach" 1
conclude that, on balance, Pro Temps exercIses the greater control. ObVIously MP AC
oversees "theIr day-to-day work" because It IS MPAC v.hlch decIdes what work needs
to be done, where, and by whom. But once the Pro Temps employee has been gIven an
mItlal OrIentatIon b" MP AC (similar to that whIch lik.eh would be gl\ en to a successful
Job postmg applIcant) - that IS told where to find the work asSIgnments and what to do
WIth them - lIttle If any further superVIsIon IS reqUIred because the Pro Temps employees
have been chosen by Pro Temps for theIr abilIty to do the MPAC work.
It IS Pro Temps whiCh, ha\.lng obtamed the contract for and havmg understood the
nature of the work MPAC needed to gel done then decIdes whIch of Its employees is
quahfied to do the ~fPAC assIgnment chooses which of those to send to l\1PAC gets
f
- 7-
each employee's agreement to be so assIgned and then sends them there.
Takmg thIs more "comprehensIve approach" rather than a narrower,
tradittOnalist and restnctlve VIew of labour relatIons (the busmess world and world of
work has changed substantIally smce the NattOnal Labor RelatIons Board made Its
1940's Ford deCISIon) I conclude, based on the eVIdence actually before US, that Pro
Temps exercIses the crItIcal control and effectIvely IS the employer
2 rhe Burden ofRemuneratton
Pro Temps decIdes on the level of remuneratIon of Its employees mcluding vacatIon
and holIday pay (and, we heard, refused a request from at least one of the employees
aSSIgned to MPAC for a wage mcrease) Pro Temps pays ItS employees from Its own cash
flow from all Its customers.
3 The Party lmposmg DISCIpline
The need for diSCIplIne of a Pro Temps employee never arose dunng the MP AC
project and so no conclustOn can be drawn from the eVIdence. The "talkatIve employee"
IllcIdent was a non-event, akm to tellIng a co-worker that smokmg m the office wasn't
allowed. I agree With the ChaIr that Pro Temps has the authonty to diSCIplIne (whether
ostensibly or otherwIse).
4 The Partv Hinng: the Employees
Pro Temps recruIts, screens, tests for computer skills and aSSIgns ItS employees.
- 8-
WhIle the Board saw no employment documents whIch Pro Temps employees may
have sIgned wIth theIr employer Ms Emanuel testIfied that when she sought
employment WIth Pro Temps she filled out an employment apphcatlon form, provIded a
resume and references, and was tested by Pro Temps on her skills. She expected to be and
was assIgned by Pro Temps to ItS vanous customers, one of whIch turned out to be
MP AC thus demonstratmg conclUSIvely that Pro Temps controls where and when Its
employees are assIgned.
As WIll be seen below, each of the Pro Temps employees who testIfied was
uneqUivocal m theIr VIeW that Pro Temps was their employer
(n my view the fact that the pool of labour mamtamed by Pro Temps may mclude
SOllIe who are "relatIvely unskIlled" (the ChaIr's words) IS Irrelevant, nor does It matter
that the work m question IS IdentIcal to or ancillary to the work performed by regular
MPAC employees - MPAC can c.ontract out work under thIS agreement whether that
work IS anCillary to or the same as that performed by ItS own employees That's why the
UnIon wanted the contract amended.
') 811thOnty to DIsmISS
As wIth the Issue of diSCIplIne, the need to discharge a Pro Temps employee whIle
on assIgnment to MP AC dId not anse and thus we have no example on whIch to base a
conclusIOn. Agam I agree WIth the Chair 1Imt Pm Temps has the ostensible authonty to
dIscharge It seems clear that If a Pro l't~mp" emplovee dId somethmg whIle at MPAC
-9
whIch warranted discIplIne or discharge, MP AC m Its own mterest would complam to
Pro Temps about unsatIsfactory performance and likely would InSIst on that person's
removal from ItS Job It also seems clear to me that In such cIrcumstances It would be
Pro Temps whIch decIded whether or not discipline/dIscharge was warranted followmg
removal of the employee from the MPAC assIgnment.
The eVIdence ofMP AC employee Ms. Rouillard was uneqUIvocal If a need for
dlscIphne arose MPAC would not Impose It but would tell Pro Temps and would expect
Pro Temps to act.
6 The PerceIved Employer
The three Pro Temps employees who testIfied had no doubt that Pro Temps was
theIr employer I belIeve It a vahd conclUSIOn to draw from the eVIdence that If these
employees were to umOll1ze and seek certIficatIOn from the Labour RelatIons Board, they
and theIr UnIon would name Pro Temps as theIr employer, not MPAC
7 IntentIon to Create an Employment RelatIOnshIp
It IS clear from the eVIdence that neIther '-iP AC nor Pro Temps had any mtentlon
that the Pro Temps employees become employees of1\1PAC In fact the rules were clear
that Pro Temps employees were prohibIted from seekmg such employment dunng the
Imtlal penod of theIr assIgnment there. As the ChaIr hImself saId m hiS Ford Motor Co
of Canada declSlon (1 L.A.C (3d) 155) "It IS one thmg to Imply consent to create an
employment relatlOnshlp where the eVIdence respectmg that consent IS eqUIvocal, It IS
qUIte another thmg to Ignore the express mtentIon of the partIes /lot to create an
- 10
employment relatIOnshIp" (emphaSIs m the ongmal) Would that the Chair had followed
hIS own advIce here and not Ignored the express mtent of the partIes The eVIdence was
uneqUIvocal that neIther of the two employers, nor the Pro Temps employees, consented
to or Illtended a dIfferent relatIOnshIp than the one they had contracted for wIth each
other Instead, In my respectful vIew the chaIr mIstakenly converts the Pro Temps
employees mto MP AC employees contrary to the express mtent otherwIse
As the ChaIr pomts out these seven factors do not always pomt III the same
(hrcct Ion nor bear equal weIght. However III mv VIew havmg weIghed them all
agamst the actual eVIdence put to us, I would conclude on the balance of probabIlItIes that
Pro Temps IS the employer of the people assIgned to the MP AC project. The onus IS on
the umon to prove Its case and so where there IS on!) speculatIon, unclear ambIguous or
Incomplete eVIdence, the Issue should be resolved III favour of the employer
Accordmgly I would dIsmISS the gnevance Mamt/ens Ie DrOit
RJ GallIvan