Ontario Public Service Employees Union v. Ottawa Day Nursery Inc., 1987 CanLII 3000

Ontario Public Service Employees Union v. Ottawa Day Nursery Inc. c.o.b. as Andrew Fleck Child Centre

[1987] OLRB Rep. January 5

0855-85-R Ontario Public Service Employees Union, Applicant, v. Ottawa Day Nursery Inc. c.o.b. as Andrew Fleck Child Centre, Respondent

BEFORE: D. E. Franks, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.

DECISION OF D. E. FRANKS, VICE-CHAIRMAN AND BOARD MEMBER W. F. RUTHERFORD; January 22, 1987

1This is an application for certification. By a previous decision this Board ordered a vote of certain employees of the respondent to be conducted by mail. The ballot box was directed sealed pending the resolution of the status of the persons sought to be represented by the applicant. The bargaining unit is essentially a bargaining unit of home day care providers working for the respondent in the Ottawa-Carleton area. At the hearing in this matter, the respondent took the position that these providers were not employees but were rather independent contractors. The applicant trade union took the position that whether or not they were, they were at least dependent contractors within the meaning of section 1(1)(h) of the Act and the applicant was therefore entitled to certification of such persons pursuant to the dependent contractor provisions of the Act.

2The persons whom the applicant is seeking to represent are referred to as providers. They are part of a program to provide an alternative to institutional day care by providing in their homes day care services for a limited number of children. In this regard the role of the respondent is primarily that of a clearing house. That is, the Centre maintains a list of providers who are prepared to accept children into their homes and on the other hand when a parent or parents apply for such day care the role performed by the Centre is to match the parent with a provider.

3As noted above, the respondent keeps a list of potential providers. When people apply for the position of provider they are interviewed and their home is inspected and eventually if everything is acceptable they go on the list of providers. Both the qualifications and the home of the provider are the subject of extensive regulation by both the Province and the respondent Centre. When a potential match is made between a parent and a provider the Centre sets up a meeting between the parent and the provider and either can refuse to enter into the relationship. The number and the ages of the children in any particular provider's home is quite strictly controlled. Nevertheless, payment (although according to a schedule) roughly depends upon the amount of service provided by the provider. Payments are made by the respondent on the basis of records kept by the provider.

4Although some of the providers provide services for parents who pay, much of the fee comes from in effect the welfare payments by the municipality through the respondent Centre. In this regard, the schedule of payments made to providers is in effect set by the municipality rather than the agency itself.

5Counsel for the respondent argues that on the facts of the present case that the providers are not employees of the respondent Andrew Fleck Centre. He thus argues that in the matter of control for instance that the control over the providers is imposed totally by outside powers. That basically the various provincial regulations concerning the safety and the well-being of the children are outside both the agency and the provider. However, he notes the providers are free to determine their own workload, that is, the number of children that they will accept provided it is within the regulated limit. He further points out that the ownership of tools is essentially in the hands of the provider like any other independent contractor. Other indicia that the providers are not employees but independent contractors relates to the lack of income tax deductions made by the respondent for the various providers.

6Counsel for the applicant points out that it is not necessary for the Board to find that the providers be employees of the respondent as distinct from independent contractors. It is sufficient for the Board to simply find that the providers are dependent contractors. In order to be dependent contractors, the Board must find two things:

(1) the contractor must be in a position of economic dependency closely analogous to that of an individual employee; and

(2) the contractor must be under an obligation to perform duties for the client roughly analogous to the obligation an individual employee has to perform duties for an employer.

7In our view, the provider is a dependent contractor with respect to the respondent Centre. The source of the economic dependency is primarily that the provider relies mainly on the Centre for available work and further on the evidence before us, it is clear that most of the work performed by the providers does come from the respondent Centre rather than being obtained by the individual provider.

8It is also clear that the provider is under an obligation to perform the duties similar to that of an employee. Indeed, as we have noted earlier, the activity of the providers is extensively regulated and the respondent plays a significant role in the enforcement of those regulations ensuring that the performance of the duties required of the provider by the Child Welfare Act are complied with. In our view, the required duties are more than simply analogous to the obligation that would be held by an employee to an employer.

9It should be noted that several matters raised by the respondent are irrelevant to the determination of whether or not the providers are dependent contractors. Thus, the source of the funding and the fact that that source may affect collective bargaining is not relevant to determination of whether or not the providers are dependent contractors.

10In our view, therefore, the providers are to be viewed as dependent contractors and therefore employees of the respondent. That being the case, the Board hereby directs the Registrar to count the ballots cast in this matter.

DECISION OF BOARD MEMBER J. A. RONSON;

For the reasons best expressed by my colleague Mr. W. H. Wightman in Cradleship Creche of Metropolitan Toronto, [1986] OLRB Rep. Feb. 225, I find that the providers are not dependent contractors as contemplated by the Act.