Association of Commercial and Technical Employees, Local 1704 C.L.C. v. Province of Ontario Board of Internal Economy
[1980] OLRB Rep. January 88
2067-78-R Association of Commercial and Technical Employees, Local 1704 C.L.C., Applicant, v. Province of Ontario Board of Internal Economy, Respondent.
BEFORE: M. G. Picher, Vice-Chairman and Board Members M. J. Fenwick and J. D. Bell.
APPEARANCES: Edward H. Wright for the applicant; Janice Baker and W. S. Wilson for the respondent.
DECISION OF THE BOARD; January 28, 1980.
Decision
The applicant union is seeking certification with respect to a bargaining unit described as "all employees in all N.D.P. Constituency offices in the Province of Ontario". The respondent contends that it is not the employer of the employees affected by the application.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.
The Board has considered the representations of the parties on the Report of the Labour Relations Officer dated August 24, 1979. The evidence establishes that the respondent Board of Internal Economy is a governing body of the Office of the Legislative Assembly, which in turn is the administrative office of the Government of Ontario, including such things as the Office of the Clerk, the Office of the Speaker, the Hansard Reporting Service, and personnel and finance administration. Reference may be made to The Legislative Assembly Act, R.S.O. 1970, c. 240, particularly sections 71-86. The Office of the Legislative Assembly implements the decisions of the Board of Internal Economy. The Board is composed of Members of the Legislature with the Speaker as chairman, and acts as the representative of the Members and transmits their wishes into actions.
The Board of Internal Economy allocates money from the Consolidated Revenue Fund to provide constituency offices to Members of the Legislature. These funds for the operation of each office pay for such matters as rental of accommodation, salary for staff, and postage. Maximum amounts for each use are specified, and if a Member does not spend all of the money which he is allocated, he returns it to the Central Fund.
Constituency office workers are interviewed and hired by each individual Member. A standard form contract is provided by the Office of the Legislative Assembly, but it is signed by the Member and the employee. The form lists "conditions of employment" which the employee and Member agree to have apply to the contract or alternatively agree not to have apply to the contract. The Member determines the number of employees, their hours of work, and vacations; he directs, disciplines, evaluates, assigns work, and fires the employees. The Member also sets the rate of pay of the employees. Although his spending from the fund is limited to the maximum amount allocated by the Board for salaries, there is no prohibition on the Member supplementing this amount from his own pocket or other sources. The Member directs the Office of the Legislative Assembly to pay his employees and the money is withdrawn from the Member's budget and a cheque is issued by the office.
In York Condominium Corporation, [1977] OLRB Rep. Oct. 647, this Board outlined a series of criteria which it has applied in determining which of two or more parties is or are the employer(s) of certain employees. The criteria are: (1) the party exercising direction and control over the employees performing the work; (2) the party bearing the burden of remuneration; (3) the party imposing the discipline; (4) the party hiring the employees; (5) the party with the authority to dismiss the employees; (6) the party who is perceived to be the employer by the employees; (7) the existence of an intention to create the relationship of employer and employee.
In light of these criteria, save the second, it is clear that the Member of the Legislative Assembly is the employer of any personnel that he or she hires and directs within his or her constituency office. The Board of Internal Economy is little more than a paymaster, having no contact with the employees other than in matters related to payment of the allocated funds. Although in the absence of other circumstances, the factor of payment may well constitute a cogent circumstance from which an employment relationship may be inferred, (Municipality of Metropolitan Toronto, 61 CLLC ¶16,214), here the weight of complete direction and control by the Member makes the mere mechanics of payment of wages insufficient in itself to establish the Board of Internal Economy as employer.
It is well settled that the funding and administration of wages pursuant to government programs do not of themselves cast a government body in the role of employer. A similar situation was considered in Waterloo County Roman Catholic Separate School Board, [1977] OLRB Rep. December 856. There the School Board had complete direction and control of students who were paid partly out of funds provided by government assistance programs, and the Board held that the students were employees of the School Board for the purposes of The Labour Relations Act. The Board approved the reasoning applied to L.I.P. grants by the British Columbia Labour Relations Board in Kelowna Centennial Museum Association, [1977] 2 Can LRBR 285.
For the foregoing reasons the Board finds that the persons affected by this application are employees of the individual Members and not of the respondent. The application is therefore dismissed.