R. Swenor

The applicant union applied for certification with respect to employees performing janitorial services at the Cleary Auditorium, naming Ambassador Building Maintenance Limited as the respondent employer.

The respondent argued it merely provided a payroll service and was not the true employer.

The Board found that although a contract existed between the respondent and the auditorium, the auditorium actually hired, supervised, and set the working conditions for the employees.

Applying the "true employer" test, the Board concluded that the auditorium, not the respondent, was the true employer.

The application for certification against the respondent was dismissed.

The applicant union brought an application under sections 63 and 1(4) of the Labour Relations Act, alleging a sale of business and related employer status between the respondents.

The preliminary issue was whether the respondent, David Yan & Partner of Canada Limited, was bound by a collective agreement with the applicant.

The Board found that the respondent had voluntarily recognized the union by joining the Toronto Construction Association, which subsequently entered into a collective agreement on its behalf.

The Board concluded that the respondent was bound by the current industrial, commercial, and institutional collective agreement and directed the matter to be listed for a continuation of the hearing.