Ontario Public Service Employees Union v. Ontario (Minister of Natural Resources), 1988 CanLII 3717

[1988] OLRB Rep. September 971

0814-88-R; 0815-88-R; 0848-88-R; 0849-88-R; 0850-88-R The Ontario Public Ser­vice Employees Union, Applicant v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources and Tarandus Associates Limited, Respondent; The Ontario Public Service Employee's Union, Applicant v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources and Charmaine' s Janitorial Services, Respondent; Ontario Public Service Employees Union, Applicant v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources and Moose Creek Forestry Company, Respondent; Ontario Public Service Employees Union, Applicant v. Gullwing Forestry Ltd., Respondent; Ontario Public Service Employees Union, Applicant v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources and Harold Luckasavitch, Respondent

BEFORE: Patricia Hughes, Vice-Chair, and Board Members R. M. Sloan and P. Grasso.

APPEARANCES: Alick Ryder, Q.C. and Ethel Laualley for the applicant; C. G. Riggs, J. T. Thomson, M. Campbell and T. Smith for Her Majesty the Queen in Right of Ontario as repre­sented by the Minister of Natural Resources; S. Donald Speller for Tarandus Associates Ltd.; Mr. Olmstead for Charmaine's Janitorial Services; Harold Luckasavitch on his own behalf.

DECISION OF THE BOARD; August 26, 1988

I

1. These matters were scheduled and heard together.

2. No one for Moose Creek or Gullwing having appeared by the scheduled commence­ment of the hearing at 9:30 a.m., we waited until 10:00 a.m. and began the hearing when no one had appeared by that time.

3. In each of these cases, except Board File No. 0849-88-R, the Ontario Public Service Employees Union ("O.P.S.E.U." or "the union") seeks a declaration under the Successor Rights (Crown Transfers) Act ("the Crown Transfers Act" or "the Act") that The Crown in Right of Ontario as represented by the Ministry of Natural Resources ("the Crown" or "M.N.R.") trans­ferred within the meaning of clause 1(1)(f) of the Act a named undertaking to a private entity and that in each case the private entity is bound by the collective agreement extant between OPSEU and the Crown.

4. At the outset of the hearing, counsel for OPSEU withdrew its application in File No. 0814-88-R to which there was no objection from the respondent therein.

5. The allegation in File No. 0815-88-R is that the Crown transferred "janitorial services for comfort stations, vault toilets, vault privies and garbage disposal buildings" in Algonquin Pro­vincial Park ("the Park") to Charmaine Olmstead c.o.b. as Charmaine's Janitorial Services ("Charmaine's"). In File No. 0848-88-R, OPSEU alleges that "the transplanting [of] black and white seedlings at the Dryden Nursery" has been transferred from MNR to Moose Creek Forestry Company ("Moose Creek") which, as part of the same transaction, transferred it to Gullwing For­estry Ltd. ("Gullwing"). The alleged transfer in File No. 0850-88-R is of "the concession to pro­vide Algonquin Park interior access point and campground services at Rock Lake Campground, Coon Lake Campground and Rock Lake Interior access point" from MNR to Hal Luckasavitch ("Luckasavitch").

6. File No. 0849-88-R is an application by OPSEU for a declaration under section 63 of the Labour Relations Act ("section 63") that there has been a sale of a business by Moose Creek to Gullwing. It was filed as an alternative to the application in File No. 0848-88-R but was not pur­sued at the hearing by OPSEU. MNR does not contend that Moose Creek no longer performs the transplanting which is the subject of the application in File No. 0848-88-R. The evidence is that Gullwing and another entity, Rugby Lake, are non-incorporated entities which perform certain functions for Moose Creek but that all employees are on a single payroll, that of Moose Creek, and that they and the functions they perform are under the control of Moose Creek or its principal, William Skene. Accordingly, the application in File No. 0849-88-R is hereby dismissed, there being no transfer subsequent to that from the Crown to Moose Creek.

7. In each case, whether transplanting seedlings, performing janitorial services or provid­ing information and permits to Park users, the functions being performed by the employees of the private respondent (or by Luckasavitch and his wife) were previously carried out by employees of MNR. The questions to be determined by us are two: do these functions constitute an "undertak­ing" within the meaning of clause 1(1)(h) of the Crown Transfers Act; and if they do, have they been "transferred" from the Crown to the private respondents within the meaning of clause 1(1)(f) of the Act? Counsel for the Crown contends that all these contracts constitute "sub-contracts" of the work involved and therefore do not fall within the meaning of "undertaking" in clause 1(1)(h) of the Act.

II

8. The relevant portions of the Successor Rights (Crown Transfers) Act are as follows:

1.-(1) In this Act,

(f) "transfer" means a conveyance, disposition or sale;

(h) "undertaking" means a business, enterprise, institution, program, project, work or a part of any of them.

2.-(1) Where an undertaking is transferred from the Crown to an employer and a bargaining agent has a collective agreement with the Crown in respect of employees employed in the under­taking, the employer is bound by the collective agreement as if a party to the collective agree­ment until the Board declares otherwise.

11.-(1) Where, on an application before the Board under this Act, a question arises as to whether an undertaking has been transferred from the Crown to an employer, the Board shall determine the question and its decision is final and conclusive for the purposes of this Act.

(3) Where, on an application under this Act, an employee organization, trade union or council of trade unions alleges that an undertaking was transferred from the Crown to an employer or from an employer to the Crown, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.

9. The labour relations purpose of the Crown Transfers Act parallels that of the "sale of a business" provisions found in section 63 of the Labour Relations Act, the comparable portions of which are:

63.-(1) In this section,

(a) "business" includes a part or parts thereof;

(b) "sells" includes leases, transfers and any other manner of disposition and "sold" and "sale" have corresponding meanings.

(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if he had been a party thereto and, where an employer sells his business while an application for certification or termination of bargaining rights to which he is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purposes of the application as if he were named as the employer in the application.

(12) Where, on any application under this section or in any other proceeding before the Board, a question arises as to whether a business has been sold by one employer to another, the Board shall determine the question and its decision thereon is final and conclusive for the purposes of this Act.

(13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.

10. In both cases, the intent is to preserve the bargaining rights of the union where there has been a change in the employer but a continuation of the economic entity which constitutes the business, in the case of section 63, or of an undertaking, in the case of the Crown Transfers Act. In the context of section 63, the Board explained in Marvel Jewellery, [1975] OLRB Rep. Sept. 733, at para. 8, that it recognizes that collective bargaining rights, once attained, should have some per­manence. Rights created either by the Act, or under collective agreements, are not allowed to evaporate with a change of employer. To provide permanence, the obligations flowing from these rights are not confined to a particular employer, but become attached to a business. So long as the business continues to function, the obligations run with that business, regardless of any change of ownership.

Underlying both the Crown Transfers Act and section 63 is the appreciation that where the essen­tial activity remains the same, but carried out by another employer, and the essential employment relationship remains the same, the union's bargaining rights and the employees' choice of repre­sentation by that union should be continued. As the Board said in Aircraft Metal Specialists Ltd., [1970] OLRB Rep. Sept. 702, at para 6, an "important purpose of section [63] is to preserve the bargaining rights with respect to work which has accrued to the benefit of the employees as a result of their union becoming the bargaining agent through certification or voluntary recognition".

11. In compliance with its obligation under section 11 of the Act to "adduce at the hearing all facts within [its] knowledge that are material to the allegation" the Crown called Mark Camp­bell, the nursery operations manager in Dryden since 1979, to testify with respect to the purported transfer of the transplanting operation and Thomas Smith, who has been park operations manager in Algonquin Park for four years, to testify about the alleged transfers to Charmaine's and Lucka­savitch. Neither Charmaine's nor Luckasavitch called any evidence. The union did not call any evi­dence.

III

12. We deal first with the alleged transfer to Moose Creek Forestry. The nursery at Dryden comprises 2,900 acres of Crown land, 100 acres of which are under production with a stock of seven million bare root trees and four million container stock seedlings. In late April or early May there is a harvest of all shippable trees on the nursery. The three year old trees are lifted out of the ground, those not satisfying the grade because of height or other criteria are removed ("culled"), the rest are bundled and packed into bags and are then shipped out to planting operations in the northwest region of Ontario. In 1988 and for five years before, 80% of the spring harvest (that is, of black pine, spruce and other trees, except red pine) was performed by contractors, with MNR staff harvesting only the red pine. Two hundred employees are engaged in the spring harvest, of whom forty are employees of MNR and 160 are employees of the outside contractors. Last year for the first time there was another harvest, in the fall, when the trees were wintered in storage and not shipped out until the spring; the fall harvest was contracted out and was done by 100 employ­ees. During the sunMuer, the trees in the nursery are transplanted into larger beds conducive to their growth.

13. It is the summer transplanting which is the subject of this application. Before 1988, it was done exclusively by 135 MINR staff. In 1988, it has been done exclusively by 151 employees of Moose Creek, except for quality control which is carried out by ten seasonal staff of MINR. The decision to have the work performed by outside contractors resulted from the omission from the relevant budget of funds allocated to salaries and the inclusion of monies which could be expended only on a contract basis. The Crown invited bids for the summer work; one of the prerequisites of bidding was that the contractor had had harvesting or transplanting experience. William Skene, the principal of Moose Creek, had harvested trees in the Dryden nursery in the fall of 1987.

14. The contract between Moose Creek and the Crown covers the period between June 20, 1988 and July 13, 1988 and had been completed by the date of the hearing; it requires Moose Creek to lift trees in the nursery and to transplant seedling stock. Moose Creek supplied the employees and paid them rates determined by Moose Creek. Of the employees hired by Moose Creek, 34% had worked for MINR during the summer of 1987. Supervision of the employees is car­ried out by Moose Creek, but the Crown establishes specifications for the lifting and transplanting, the adherence to which is ensured by MINR's quality control employees. The specifications, set out in Schedule 'A' to the contract, are detailed instructions on how the work is to be carried out; simi­larly, Schedule 'B' sets out in detail the manner in which "the Crown will assess the quality and the quantity of the transplanting and the lifting". The Crown provided equipment to Moose Creek pursuant to Schedule 'C'. For example, the Crown provided three 8-row transplanting machines at a rental of $25.00 a day; such a machine is worth about $50,000. Three tractors work $25,000 each were rented by the Crown to Moose Creek for $50.00 a day. Effectively, all necessary equipment was provided by the Crown.

15. With respect to the question of whether they constitute an "undertaking" or part of an undertaking, we see no significant difference in the functions performed under the contract to Moose Creek from those performed under the contract from MNR to KBM in KBM Forestry Consultants, [1987] OLRB Rep. Mar. 399 (application for judicial review dismissed, April 25, 1988 [Div. Ct.]). The function in KBM, the harvesting of seedlings for transplanting, formed part of a reforestation program run by MNR. The function at issue in the contract to Moose Creek is the transplanting of trees which have already been harvested. The Board in KBM found that

the Crown is involved in a reforestation project or program, operating out of its Thunder Bay Forest Nursery, and as part of that project or program, it is necessary to harvest seedlings which will later be replanted. A portion of this harvesting, following upon the loosening of the soil and prior to the actual replanting, was, but is no longer, done by the Ministry; it is now done by KBM. The Ministry has transferred (or "disposed" of) that part of the project to KBM, although it retains an interest in ensuring that the work performed by KBM is performed in a maimer consistent with the standards established by the Ministry for the reforestation program. That brings it squarely within ... the Successor Rights (Crown Transfers) Act.

In dismissing the application for judicial review of KBM, the Divisional Court stated:

In our view there can be, as in this casel,] a disposition of services effecting a transfer under 5.2(1) of the Act. 5uch a transfer is consonant with the large range [of] governmental activity contemplated within the definition of "undertaking" in s.1(1) of the Act. The diversity of such activity goes beyond the concept of "business" as found in S.63 of the Ontario Labour Relations Act and accordingly the term "undertaking" as found in 5.1[(1)]h of the Act should not be limited by analogy [to] 5.63. In concluding that the reforestation herein [is a] "program project work Ion a part of any of them", the award was not patently unreasonable.

We conclude on the basis of the analysis by the Board in KBM, supra, that the contract from MNR to Moose Creek, which encompasses merely the next step of a similar program at the Dryden Nur­sery, constitutes a transfer of an undertaking within the meaning of the Crown Transfers Act.

IV

16. The contract between MNR and Luckasavitch involves the maintenance of facilities and day-to-day management of the Rock Lake and Coon Lake campgrounds and Rock Lake access point, the provision of information and the issuance of permits to users of the Park. The contract applies to the period May 17, 1988 to March 31, 1989, but the normal operating season for the campgrounds and Rock Lake access point is May 17 to Thanksgiving. The maintenance required, the completion of the permits and other aspects of the operation of the relevant areas are specifi­cally delineated in Schedule "B" to the contract pursuant to MINR's requirements. Luckasavitch and his wife live at Rock Lake campground and perform the duties together in what was described by Mr. Smith as a "private arrangement"; Luckasavitch is free to hire employees, however.

17. In 1987, MINR performed these functions, hiring a person to collect fees for permits during July and August only at Rock Lake campground; from April 29 when the Park opened until the end of June, the system for issuing permits was "self-serve". There was also an honour system at Coon Lake and Rock Lake access point. The MNR employee worked 10:00 a.m. until 6 p.m., 5 days a week, while, according to Mr. Smith, Luckasavitch is available twenty-four hours, seven days a week. Schedule "B" of the contract states that the minimum operating times from April 10th to October 10th are seven days a week, but the minimum hours are 9:00 a.m. to 4 p.m. from April 10th to June 22nd and from September 5th to October 10th and 8:30 a.m. to 9:00 p.m. from June 23rd to September 4th; it states further that "Extended hours of operation are at the discre­tion of the Concessionaire", Luckasavitch. We were given no evidence by Luckasavitch of when he does operate the office beyond the minimum hours. Thus while Mr. Smith's testimony suggests that the twenty-four hour availability was a factor in contracting the work, the contract does not impose such a condition. The contract between MINR and Luckasavitcli is similar, according to Mr. Smith, to that relating to four of the other access points.

18. Because of the availability of Luckasavitch, counsel for the Crown argued that the tasks performed by him constitute a new "project", from which it follows that there could not have been a "transfer" of anything; however, in our view, Luckasavitch's contract with MINR merely requires that he perform the project (or set of functions comprising part of a larger project of running the Park) comprised of selling permits or providing information in a somewhat different manner than did the MINR employee who previously performed it, but it is essentially the same set of functions as performed by the MNR employee.

19. Counsel for the Crown argued further that the contract between Luckasavitch and the Crown merely entails the transfer of the opportunity to do work and therefore is not encompassed by the Crown Transfers Act. Counsel for the union argued strenuously, on the other hand, that the word "work" in clause 1(1)(h) of the Act refers to the performance of labour by the employees, rather than "a work" in the sense of an entity. He relies on KBM Forestry Consultants, supra, for that proposition; however, the Board in that case specifically declined to deal with the meaning of "work", as it was not necessary to do so, and its reference to "work" in paragraph 12 is a reference to a factor which the cases have recognized as an important consideration in deciding whether there has been a sale of a business, as is clear from paragraph 11 of the decision. While under sec­tion 63 the Board has been concerned with whether there has been a transfer of "a functional eco­nomic vehicle", and in that sense examines a variety of factors, such as whether there has been the transfer of a logo or of good will or of inventory, or whether the employees of the predecessor company work for the successor company or whether they are performing the same skills, it has also noted in Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193, at para. 32, that

[o]f particular significance for a labour relations statute it the continuity of the work performed before and after the transfer, since the trade union is certified to represent certain work groups, the collective agreement regulates the conditions of work for employees in those groups, and the purpose of section [63] is to preserve both the bargaining relationship and the collective agreement. If the work performed subsequent to the transaction is substantially similar to the work performed prior to the transaction, there is normally a strong inference that there has been a transfer of the business within the meaning of section [63] ... Unless there is a continuation of the work and jobs, it would make little sense to preserve the collective agreement. Accordingly, the continuity of work done is an important indicium of a transfer of a business.

[emphasis added]

It is in this context that the Board in KBM Forestry Consultants Inc., supra, referred at para. 12 to there being "a continuation of work and jobs" in the transfer of the harvesting of seedlings from the Ministry of Natural Resources to KBM Forestry Consultants Inc.

20. The jurisprudence makes it clear that the transfer of work alone does not constitute a sale of a business or part of a business under section 63: British American Bank Note Co. Ltd. [1979] OLRB Rep. Feb. 72, at para. 11 ("section [63] cannot be interpreted as guaranteeing to a bargaining agent an absolute right of property in the work performed by its members"); Metropolitan Parking Inc., supra, at paras. 36 ("The focus of section [63] is the business entity --the employer's total economic organization -- not simply the work which the employees perform:), 38 ("A transfer of work, by itself, is simply not enough to ground a section 55 finding.") and 44 ("The Legislature could have provided for the continuation of bargaining rights whenever there is a continuity of the work performed, but it did not do so."); The Charming Hostess Inc., [1982] OLRB Rep. April 536, at para. 33; The Corporation of the City of Stratford, [1985] OLRB Rep. June 923.

21. We are of the view that the definition of "undertaking" in clause 1(1)(h) of the Act does not include the mere performance of labour in itself. Clause 1(1)(h) does not state that "undertak­ing" includes the enumerated words, but rather that it means those words and therefore is limited to them. Where the context does not suggest a contrary intention, given a list of terms in a defini­tional phrase, the terms should be interpreted with reference to each other (that is, as "of the same kind or nature" or ejusdem generis), as counsel for the Crown argues, rather than interpreting one of the terms, here the term "work", as if it were the only term of its own class in a list of terms of another class or classes (that is, "of its own particular kind" or sui generis). Furthermore, "work" is part of a list which is preceded by the indefinite article "a" and the most common sense reading of the clause is that "'undertaking' means a ... work or a part of [it]". We conclude that the term "work" does not refer in itself to the exertion of labour and that in and by itself the performance of labour does not constitute an undertaking.

22. As the Divisional Court indicated in KBM, supra, however, the provision of services may constitute an undertaking within the meaning of clause 1(1)(h) of the Crown Transfers Act. The provision of services is, of course, a function integral to modern governments and while it may be difficult to distinguish the provision of services from the performance of labour, in the govern­ment context, many programs are comprised in their physical manifestation of little more than the provision of services to the public. The purpose of such provision is nevertheless to carry out a gov­ernment undertaking or part of an undertaking.

23. Thus under section 63, which is concerned with the private sector, the Board has been insistent on ensuring that more than the expenditure of energy or physical exertion be transferred from one entity to another in order for there to be a transfer of a business. It has held that if all that is transferred is the opportunity to do work, there is no transfer; there is no transfer, for exam­ple, if business A has contracted to business B the right to provide labour to carry out some pur­pose (such as providing personnel to help the predecessor employer run its hospitality portion of its business better: The Charming Hostess Inc., supra, paras. 37 - 39). For that reason, the Board has spoken of the transfer of assets, goodwill, inventory, customer lists and other indicia of a thriving or once thriving business and has required that some of such indicia be present to find that a busi­ness has been transferred. In referring to a "part" of a business, the Board has not been willing to consider the exertion of labour as constituting a "part", but rather has interpreted "part" as a coherent and severable portion of a business, such as one of a chain of stores or a clearly identifi­able department in a factory: Metropolitan Parking Inc., supra, para. 33.

24. The distinction between "work" and a total business is less easy to make in the govern­ment context because of the nature of the undertakings carried on by government. While the pur­pose of section 63 and that of the Crown Transfers Act are analogous, it is not insignificant that the wording of the two provisions are not the same. The Legislature has explicitly recognized that the functions of government place it in the role of employer, but that as an employer it may be engaged in quite different sorts of interests than the private sector, even as it also may be engaged

in quite similar interests in form if not in substance; thus the provision of social assistance or of housing and the functions performed by employees in connection with such programs are funda­mentally different than the usual private business and the functions carried out by its employees, but the running of a railway or of a bookshop will not outwardly be different whether carried on by a private employer or by government and can be characterized much more easily as a "business" than the provision of social assistance. Yet the provision of social assistance or of housing or the running of a railway or bookstore are all "undertakings" within the meaning of clause 1(1)(h) of the Crown Transfers Act.

25. In other words, while the purpose may be the same, the activities encompassed by the two provisions are not similar. Just as "business" and "undertaking" are neither conceptually nor in fact synonymous, the definition of "part" of an undertaking cannot be the same as that of "part" of a "business" but must take into account the different ways in which government carries out its functions and in which it acts as an employer. As "undertaking" is broader than "business", so may "part" of an undertaking be broader than "part" of a business. l7he notion of a coherent and severable portion of a business, in the sense of one store of many, which is applicable under section 63, is not necessarily appropriately transferred to the Crown Transfers Act. A program or project may be comprised of several distinct functions which can be severed but which do not constitute anything resembling a microcosm of the whole. Thus the operation of Algonquin Park consists in providing services to the users of the Park which make the Park's use possible in the first place or more enjoyable or complete, as well as services which enable the government to benefit from the operation of the Park, among other things. These activities are severable in the sense of being eas­ily identifiable as distinct services, but they mean very little on their own and are not analogous to the manner in which the Board has generally defined "part" of a business under section 63. That does not make them any less "part" of the undertaking of operating the Park, however, since in reality the operation of the Park can be seen only as comprised of these different services or func­tions.

26. In our view, what has been transferred between the Crown and Luckasavitch is not merely the opportunity to perform work or engage in labour (although we note in passing that if all that has been transferred to Luckasavitch is the work, there may arise a question of Luckasavitch's status vis-a-vis the Crown [that is, whether he is an agent of the Crown]: Ministry of Natural Resources, supra, para. 11). The contract with Luckasavitch is similar but not identical to the con­tract MINR had with Daniel Dolan and Henry Wilson ("the contractor") in The Ministry of Natural Resources, [1986] OLRB Rep. Mar. 331, which involved selling permits, providing enforcement, maintaining facilities and selling firewood in Fitzroy Provincial Park. Under that contract MINR delivered to the contractor facilities and equipment which the contractor then delivered back to the MNR at the end of the contract, including park buildings and equipment such as office furniture, power tools, boat and tractor/front end loader, worth in total about $410,000. The contract to Luckasavitch does not involve such a delivery of equipment and facilities although he has posses­sion of a residence and office for which he has responsibility; he performs more limited or express functions in the sense that he does not "manage" the entire Park as Dolan and Wilson apparently managed the smaller Fitzroy Provincial Park. Counsel for the Crown says that since the contract with Luckasavitch does not transfer assets, that contract is to be distinguished from the one MNR made with Dolan and Wilson. The transfer of assets is not a requirement of a transfer under the Crown Transfers Act. The emphasis in The Ministry of Natural Resources, supra, on the delivery of assets was to distinguish the functions of Dolan and Wilson from the cases in which one respondent had contracted to supply and manage staff for another respondent. That issue does not arise in this case. The operation of the provincial parks is a program of the Ministry of Natural Resources and whether the tasks performed by Luckasavitch themselves constitute a "project" or other form of undertaking, they do constitute part of an undertaking which has been transferred from the Crown to Luckasavitch.

V

27. With respect to the contract to Charmaine's, Mr. Smith explained that the majority of funds were budgeted for contract work since "the government is looking for alternative means of carrying out its responsibilities" and that "contracting out" has been followed in other provincial parks and it was considered it should also be followed in Algonquin Park. The Crown let out a tender for janitorial services and put an advertisement in newspapers. As the second lowest bidder, Charmaine's was approached when the lowest bidder withdrew two weeks before the start of the contract. The contract between MNR and Charmaine's, covering the period April 29, 1988 to October 10, 1988, gives a detailed description of the work to be performed in Schedule "A". Schedule "B" is a list of the frequency, by specific days (unless "daily") of when various facilities are to be cleaned during specific periods during the summer. These facilities are located along the Highway 60 corridor through the Park. Charmaine's provides the cleaning equipment and supplies, hires, pays and supervises the five adults and one student employed by it, establishes the wage rates and organizes the work to conform to the contractual format. Private contractors provide janitorial services at eleven of the twenty-nine access points in the Park and such contracts have been in effect over the last five years. In 1988, no employees of MINR do janitorial services except the staff at their own offices and at gatehouses. In 1987, however, the work done at the campgrounds along Highway 60 which are the subject of this application, was done by seasonal staff of the MNR; three of those seven employees are now working for Charmaine's.

28. Charmaine's has contracted with the Crown to provide cleaning services in a particular portion of Algonquin Park. Counsel for the Crown argued that this was merely the transfer of work. On the analysis in paragraphs 21-25 above we reject that submission. The provision of such services, without which the operation of the Park would be undermined, constitutes part of the undertaking carried on by MNR known as Algonquin Park and is therefore encompassed by clause 1(1)(h) of the Crown Transfers Act.

VI

29. We declare that there has been a transfer to Moose Creek Forestry of the undertaking or part of an undertaking encompassed by the contract between the Crown and Moose Creek For­estry and that Moose Creek Forestry is bound by the collective agreement between the Crown and

OPSEU.

30. We further declare that there has been a transfer to Luckasavitch of the undertaking or part of an undertaking encompassed by the contract between the Minister of Natural Resources and Luckasavitch and that Luckasavitch is bound by the collective agreement entered into by the Crown and OPSEU.

31. We further declare that there has been a transfer to Charmaine's of part of an undertak­ing encompassed by the contract between the Minister of Natural Resources and Charmaine's and that Charmaine's is bound by the collective agreement entered into by the Crown and OPSEU.