[1989] OLRB Rep. July 714
0956-88-R; 1617-88-R; 1884-88-R; 1885-88-R; 2324-88-R; 2335-88-R Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as repreÂsented by the Ministry of Natural Resources, and Barry Lightfoot, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Natural Resources, and John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services, ResponÂdents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Natural Resources, and John McCorÂmack, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Natural Resources, and Elsie McCormack, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by The Ministry of Government Services, and Wayne Forbes c.o.b. as Forbes Janitorial Services, Respondents; Ontario Public Service Employees Union, Applicant v. The Crown in right of Ontario as represented by the Ministry of Transportation, and Dunning Paving Limited, Respondents
BEFORE: Robert D. Howe, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.
APPEARANCES: A lick Ryder and David Wright for the applicant; Roy C. Filion, Karen E. ReyÂnolds, Mary Beth Furanna, and Robert Armstrong for the Ministry of Natural Resources; Roy C. Filion, Karen E. Reynolds, and Anne Dodds for the Ministry of Government Services; Roy C. Filion, Karen E. Reynolds, and Malcolm Smeaton for the Ministry of Transportation; John Knight and Lorraine Norris for John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services; Andrew E. King for John McCormack and Elsie McCormack; Wayne Forbes for Forbes Janitorial Services; Ron Dunning for Dunning Paving Limited; no one appeared for Barry Lightfoot.
DECISION OF ROBERT D. HOWE, VICE-CHAIR, AND BOARD MEMBER B. L. ARMSTRONG; July 18, 1989.
- The name of the Ministry representing the Crown in right of Ontario in File No. 2324-
88-R is amended to read: "The Ministry of Government Services", the name of the other responÂdent to that application is amended to read: "Wayne Forbes c.o.b. as Forbes Janitorial Services", and the name of the second respondent in File No. 2335-88-R is amended to read: "Dunning PavÂing Limited".
These are six applications under the Successor Rights (Crown Transfers) Act (the "Act") in which the applicant (also referred to in this decision as "O.P.S.E.U." and the "Union") seeks declarations that, as a result of various alleged transfers of undertakings from the Crown in right of Ontario (the "Crown") to the other respondents, the latter are bound by the collective agreement entered into between the Union and the Crown (as represented by the Management Board of Cabinet).
It is the position of the Crown, and the other respondents who participated in these proÂceedings, that the applications should be dismissed because the Union has (allegedly) abandoned the bargaining rights to which these applications pertain. Dismissal is also sought in respect of some of the applications on the grounds that the alleged successor is not an "employer" within the meaning of the Act.
Counsel for the Union contended that the Crown did not have standing to raise the issue of abandonment. After hearing and recessing to consider submissions concerning that matter, the Board made the following unanimous oral ruling on April 4, 1989:
Having considered the submissions of counsel and reviewed the cited cases, we find no merit in the Union's contention that the Crown does not have standing to raise the "abandonment" issue. Although we have not had detailed submissions concerning the scope of that issue, it appears to us to be arguable that the issue, as described by Mr. Filion, could have a bearing on whether the Board should declare that transfers of undertakings have occurred in the circumstances of these cases. The Board's decision in Ontario Hydro, [1986] OLRB Rep. May 663, deals only with the question of what is required to give a person or other legal entity status as a party in proceedÂings. In the instant cases, the Crown is unquestionably a proper party. Indeed, section 11(3) of the Successor Rights (Crown Transfers) Act expressly recognizes that the Crown will be a party, and imposes an obligaÂtion on it to adduce at the hearing all facts within its knowledge that are material to the allegation. It appears to us that the "abandonment" facts are at least of arguable relevance to the allegations that undertakings have been transferred from the Crown to the other respondents in these cases. In any event, we are satisfied that the Crown is entitled, if not obligated, to place those facts before us through evidence, and having done so, to present arguÂment as to whether or not the applications should be granted, including arguÂment concerning the "abandonment" issue.
In the interests of avoiding unnecessary delay and maximizing the productive use of the hearing time which had been scheduled in respect of these matters, on April 4, 1989 the Board also directed the applicant and all of the respondents to forthwith produce to each of the other parties in their respective files all documents on which they intended to rely in these proceedings.
On the agreement of the parties, evidence was heard consecutively regarding File Nos. 2335-88-R, 0956-88-R, 2324-88-R, 1884-88-R and 1885-88-R, and 1617-88-R, on the understanding that the testimony of witnesses whose evidence was relevant to more than one file would be applied to the other pertinent files in order to avoid unnecessary duplication of evidence. During the six days of hearing which were devoted to the evidentiary stage of these proceedings, the Board heard testimony from twenty-two witnesses (including two who were called and then later recalled), and received thirty exhibits (including six exhibit books filed by the Crown, each of which contains numerous documents). On the agreement of the parties, the six applications were then argued together in view of the commonality of some of the issues. In preparing this decision, we have duly considered all of that oral and documentary evidence, as well as the inferences that may reasonably be drawn from it. We have also duly considered the able submissions that were made on behalf of the parties. (Those submissions are summarized below, in paragraphs 37 to 47 of this decision.)
File No. 2335-88-R pertains to the contracting out of certain snow plowing in Patrol Number 16 of the Ministry of Transportation's London District to the respondent Dunning Paving Limited ("Dunning"). Ministry of Transportation ("M.O.T.") employees who perform road mainÂtenance work on provincial highways during the summer (and other seasons when the weather perÂmits such work to be done) use Ministry equipment to plow snow from those highways during the winter. However, since the M. O.T. does not have enough staff and equipment to handle all of the snow plowing for which it is responsible on provincial highways, and does not wish to purchase additional equipment that will only be used for a relatively short period of time each year, some of that work is contracted out to contractors such as Dunning, which provide their own equipment and employees. As suggested by its name, Dunning performs (asphalt) paving work during the summer. It has a garage in Woodstock where it keeps its trucks, loaders, rollers, and other equipÂment when they are not in use. It bids on M.O.T. contracts in order to utilize some of that equipÂment during the winter season.
M.O.T. contracts are let by a tendering process. Advertisements are placed in local newspapers by the Ministry to notify equipment owners of the type of equipment required, the location of the work, the term of the contract, and the standby rate (which is the amount paid for days on which the equipment is not needed). The advertisements also indicate where anyone who is interested can obtain specifications and tender documents, and the date and time by which sealed tenders must be submitted. The tenders are opened and read out at a public meeting. The contract is generally awarded to the contractor whose tender contains the lowest price per working hour (which price includes the rental of the truck and the provision of personnel to operate it).
Patrol Number 16 is a section of Highway 401 running from Woodstock west to the Highway 73 intersection near Putnam. It also includes a portion of Highway 59 from just north of Highway 401 to just south of Norwich. Part of the snow plowing in that patrol has been contracted out to contractors since the winter of 1981-82. The rest has always been performed by Ministry employees. Dunning has been one of the two successful bidders in respect of each snow plowing tender for Patrol Number 16 since 1981-82; its first contract was for the 1981-82 and 1982-83 winter seasons, and it has had a series of contracts with the M.O.T. covering each winter season since then. (Another contract has also been let in respect of snow plowing in Patrol Number 16 for each winter season since 1981-82, but the successful bidder on that contract has changed over the years; D. Ede had it for the 1981-82 and 1982-83 winter seasons, a contractor called "Jerrylou" had it for the next three winter seasons, and Lloyd Boyce Paving Inc. had it for the 1988-89 winter season under a contract which also covers the 1989-90 winter season.)
When employees first heard rumours in the summer of 1981 that snow plowing in Patrol Number 16 might be contracted out that year, they approached Tom Bertrand, who was the local union steward for the patrol at that time. (Mr. Bertrand, who was the second witness called by the Crown in these proceedings, is currently the patrol supervisor for Patrol Number 16.) It was Mr. Bertrand's evidence that at that time a lot of very unhappy employees came to him wanting to know if snow plowing was going to be contracted out and, if so, what could be done about it. After discussing the matter with the person who was then (but is no longer) the president of the local union, Mr. Bertrand, who was unaware of the Act, told the employees that nothing could be done about it.
Dunning's most recent snow plowing contract with the M.O.T. is for the 1988-89 and 1989-90 winter seasons. Under that contract, Dunning has agreed to rent a plow truck to the M.O.T., and to provide personnel to operate that truck, for the sum of $54.00 per working hour during the winter season, which generally runs from mid November to the end of March for snow plowing purposes. The contract contains detailed provisions concerning vehicle specifications, availability, conditions of employment, liability, and payment. Dunning is responsible for all mainÂtenance work, washing, lubricants, and fuel, although the Ministry provides compressed air and water for use in cleaning and maintaining the vehicle, and also permits Dunning to use fuel from fuel tanks at the M.O.T. Patrol Yard provided that Dunning replaces the fuel from time to time. When not in use during the winter season, the plow truck which Dunning uses to fulfil the contract is parked in the Ministry's patrol yard for Patrol Number 16, where the Ministry stores supplies of salt and sand which are loaded onto Ministry and contractors' trucks by means of a loader which the Ministry rents from Dunning under a separate contract. Neither that contract nor the M.O.T. contract under which Dunning provides and operates a sanding truck are covered by the instant application, which pertains only to the aforementioned snow plowing contract. (With the exception of a one season break around 1986, Dunning has had a contract with the Ministry for the provision and operation of a sanding truck each winter since 1972, pursuant to a tendering process similar to that described above.)
Ron Dunning, the President and owner of Dunning Paving Limited, drives Dunning's plow truck himself to perform work covered by the snow plowing contract. Dunning also employs an individual named Barry Alexander on a part-time basis to operate that truck. (Two other perÂsons, including Mr. Dunning's son Jeff, are employed by Dunning to operate the aforementioned sanding truck.) When the Ministry has snow plowing for Dunning to perform, Mr. Dunning or one of those other three persons is contacted by a M.O.T. shift supervisor.
The M.O.T. has six permanent patrol staff employed on Patrol Number 16 throughout the year. During the winter season, it also uses one employee from the Ministry's construction staff and three seasonal employees to assist in winter road maintenance operations. When they are not operating snow plows or graders to clear snow from the highways, those ten employees work on equipment maintenance and highway maintenance work such as cold mix patching, shoulder mainÂtenance, sign repairs, and litter pick-up. A wintertime complement of about ten employees has been in place on Patrol Number 16 since 1981-82 when the contracting out of snow plowing on that patrol began. In the previous winter season (1980-8 1), there were nineteen employees assigned to Patrol Number 16. Thus, contracting out reduced by nine persons the winter season employee complement for that patrol. Snow plowing in respect of some other patrols in the London District had been contracted out since the 1979-80 winter season. By the 1981-82 winter season, snow plowÂing was being contracted out for six of the fourteen patrols in the London District. (Although patrols were originally numbered from 1 to 18, some of them have ceased to exist as a result of amalgamation with other patrols.)
During the course of cross-examining the Crown's first witness, Carl Hennum, who is the District Engineer for the M.O.T.'s London District, counsel for the Union sought to ask what M.O.T. personnel can do if employees of Dunning misconduct themselves. Counsel for the Crown objected to that question. After hearing and recessing to consider submissions concerning that objection, the Board made the following oral ruling:
Having duly considered the submissions of counsel, we are unanimously of the view that Mr. Filion's objection should be upheld. Mr. Ryder seeks to ask the witness the following question: "If Dunning people misconduct themselves what can the Ministry people do?" In responding to Mr. Filion's objection, Mr. Ryder asserted that the answer to this question could be releÂvant in determining whether the persons doing the snow plowing covered by the contract between the respondents are employees of the contractor or of the Crown. He then indicated for the first time that an alternative position which his client now seeks to assert in these proceedings is that this applicaÂtion which his client has made should be dismissed because the people affected by it are Crown employees, and because there can be no abandonÂment of bargaining rights in respect of Crown employees in view of the proÂvisions of the Crown Employees Collective Bargaining Act.
It is open to question whether this Board has jurisdiction to determine whether a person is or is not an employee of the Crown. Jurisdiction to decide that question is expressly conferred upon the Ontario Public Service Labour Relations Tribunal by section 40(1) of the Crown Employees CollecÂtive Bargaining Act. However, even if we do have concurrent jurisdiction, we are of the view that it is preferable to have the question decided by the TriÂbunal in view of the importance of the issue in the context of the collective bargaining relationship between the Crown and O.P.S.E.U., and in view of the experience and expertise of the Tribunal in dealing with issues of Crown employment. Moreover, we are of the view that it would be unfair and inapÂpropriate to permit the applicant to raise this issue for the first time during the course of cross-examining the Crown's first witness. Neither the Crown nor the other respondent or any of the other individuals whose employment status O.P.S.E.U. now seeks to place in issue have had any notice that this issue would be raised in these proceedings.
Accordingly, the objection is upheld. If the applicant wishes to pursue the issue before the Tribunal under section 40(1), we will entertain a request that the hearing of this application be adjourned sine die pending the filing and adjudication of such application.
(Applicant's counsel then advised the Board that his client was not requesting an adjournment.)
Dunning received no notice or other indication that the Union was of the view that it was bound by the collective agreement until December of 1988 when it received a letter from the Union to that effect. The Crown also had no notice prior to the 1988-89 winter season that the Union intended to file any applications under the Act concerning the contracting out of snow plowÂing.
File No. 0956-88-R pertains to the contracting out, by the Ministry of Natural Resources (the "M.N.R.") to the respondent Barry Lightfoot, of the picking up and disposing of garbage from the Emily Provincial Park ("E.P.P."). That park has an area of approximately 69 hectares and is located about twenty kilometres north of Peterborough on the Pigeon River. It has about three hundred campsites and five hundred parking spaces for day use. Approximately twenty-four people are generally employed at E.P.P. during the summer, including a Park SuperÂintendent, ten bargaining unit employees, and about thirteen students.
E.P.P.'s garbage pick-up and disposal was first contracted out in 1980. Prior to that it was done by M.N.R. employees. Contractors have been selected by means of a tendering process similar to that described above. Mr. Lightfoot was the successful bidder in 1980, and his contract was renewed in 1981 and 1982. In 1983 the contract was retendered and awarded to another conÂtractor for the 1983, 1984, and 1985 seasons. However, in 1984 that other contractor failed to perÂform the work in a satisfactory manner. As a result, his contract was terminated. In the 1985 retenÂdering, Mr. Lightfoot was once again the successful bidder and was awarded a contract for the 1985, 1986, and 1987 seasons. In 1988 Mr. Lightfoot, who was the only one who submitted a tender, was awarded a contract for the 1988, 1989, and 1990 seasons. That contract obligates Mr. Lightfoot to supply all equipment, vehicles, and labour required to pick up and dispose of garbage from twelve specified locations in the park on each of fifty collection days each year and from 116 other specified locations in the park on sixty collection days each year, as scheduled by Lyle WilÂlard, the Park Superintendent. Under the terms of that contract, the M.N.R. agrees to provide at certain designated sites seven wooden garbage containers of a specified capacity, and to provide at various other specified locations a total of 120 metal garbage cans of certain dimensions. Mr. WilÂlard told the Board that Mr. Lightfoot comes to the Park four times a week and spends between one hour and four hours performing his duties under the contract on each of those days. Early in the season, Mr. Lightfoot uses a quarter-ton or half-ton pick-up truck. Later in the season when there is more garbage, he uses a one ton stake truck with a high rack on it. Mr. Willard testified that he generally sees Mr. Lightfoot once or twice a week and has never seen anyone other than Mr. Lightfoot himself performing work covered by the contract. However, he acknowledged in cross-examination that he did not observe Mr. Lightfoot disposing of the garbage and that Mr. Lightfoot is entitled to use an employee to do that, or to perform any of the other work covered by the contract. As noted above, Mr. Lightfoot was not in attendance at the hearing. Thus, there is no evidence before the Board other than that of Mr. Willard concerning who performed the work covÂered by the contract.
The employees at E.P.P. are part of a unit serviced by Local 309 of O.P.S.E.U. John Broderick, who has been the President of that local since the mid 1970's, became aware of Mr. Lightfoot's contract within a short time after it was awarded. Some of the employees working at the park expressed concern to him that "people were being done out of their jobs by contracting out". Mr. Broderick shared their concern, but was unaware of the Act and did not think that anyÂthing could be done about the loss of jobs because at that time seasonal employees had no recall rights under the collective agreement. He did not consult with the local staff representative nor with anyone from the Union's head office concerning the matter.
File No. 2324-88-R pertains to the contracting out of certain janitorial services by the Ministry of Government Services ("M.G.S.") to Forbes Janitorial Services ("Forbes"), which is a sole proprietorship owned by Wayne Forbes. Those janitorial services are performed by Mr. Forbes at the Juvenile Observation and Detention Centre (the "Centre") at 1670 Oxford Street East in London. The Centre is an eighteen bed secure custody facility which provides residential services to persons aged twelve to sixteen who have been ordered into detention to await a court hearing or who have been ordered into secure custody under the Young Offenders Act. It is operÂated by the Ministry of Community and Social Services. Pursuant to an agreement with that MinisÂtry, M. G .8. has undertaken to provide various property management and maintenance services, including janitorial cleaning services. M.G.S. has similar responsibilities for a number of other government buildings. In some cases it uses its own employees to perform those services. In other cases it uses a tendering process similar to those described above to arrange for a contractor to proÂvide those services. Under that process, anyone can obtain tender documents from the M.G.S. except previous contractors who have been placed on a list of disqualified contractors because of poor performance.
The Centre opened in 1975. The evidence before us does not indicate whether janitorial services at the Centre were contracted out when the Centre first opened. Eric Morris, the Assistant District Manager for M.G.S. in London, told the Board that it is the Ministry's practice to retain contractual documents in the district for about three years, after which they are sent to Toronto for future disposal. He also testified that Ministry personnel in Toronto had been unable to produce any cleaning contracts for the Centre prior to 1986. However, an excerpt from the M.G.S. Annual Report for the fiscal year ending March 31, 1977 which was entered as an exhibit in these proceedÂings indicates that a contract for janitorial services at the Centre was awarded to Industrial BuildÂing Maintenance (1971) Ltd. effective May 31, 1976. Subsequent M.G.S. Annual Reports indicate that a contract for janitorial services at the Centre was awarded to Portuguese Building MainteÂnance Company in 1978, Louis Janitorial Service Co. in 1979, and Continental Building MainteÂnance, division of 386044 Ontario Ltd. in 1981. There is no evidence before the Board concerning who provided janitorial services at the Centre from 1982 to 1985, but it is clear from the testimony of Owen McElhinney, who has been the Director of the Centre since 1978, that janitorial services were provided by contractors throughout that period. In 1985 a two-year contract was awarded to Oxford Building Maintenance ("Oxford") and in 1987 a two-year contract was awarded to P.D.Q. Building Services Management ("P.D.Q."). Wayne Forbes was employed as a cleaner at the CenÂtre by Oxford in 1985 and 1986, and then by P.D.Q. in 1987 and 1988. During most of that four-year period, he was assisted by a part-time worker who performed light duty work four hours a day. However, when she quit in the Spring of 1988 no one was hired to replace her and Mr. Forbes carried on by himself, receiving payment for both jobs. When the contract was tendered in 1988, Mr. Forbes saw it advertised in a local newspaper and decided to submit a bid under the name Forbes Janitorial Services. (He had also bid on the previous contract but was not awarded it as his bid was slightly higher than P.D.Q.'s bid.) Since Forbes' bid for the two-year period of the current contract was the lowest one received, Forbes was awarded it. That contract details the type and frequency of cleaning services required to be performed. Under that contract, the building owner is required to provide a cleaner's closet for Forbes with a slop sink and storage space for supplies and equipment. The contract requires Forbes to provide all cleaning supplies and equipment, light bulbs and fluorescent tubes, and washroom supplies. It also obliges Forbes to maintain one cleaner on full day duty from 7:00 a.m. to 4:00 p.m. daily and one cleaner on half day duty from 8:00 a.m. to 12:00 p.m. daily, and specifies that a minimum hourly wage of $6.63 must be paid to them. However, Mr. Forbes has continued to do all the work himself and has not employed any part-time or other help. Mr. Forbes has made an arrangement with P.D.Q. under which he will pay P.D.Q. to provide a replacement for him when he is away on vacation or absent due to illness. However, he had not yet had occasion to utilize that arrangement as of April 13, 1989 when he testified before the Board.
File No. 1884-88-R pertains to the M.N.R.'s contracting out to John McCormack of the operation and maintenance of the Magnetawan Lake Access Point ("M.L.A.P.") in Algonquin Provincial Park (the "Park"). File No. 1885-88-R pertains to the M.N.R.'s contracting out to Elsie McCormack of the operation and maintenance of the Park's Rain Lake Access Point ("R.L.A.P."). Access points are locations at which members of the public can park their vehicles, obtain information, purchase Park permits, and gain access to the interior of the Park. Some access points, such as R.L.A.P., also have a campground. There are a total of 29 access points in the Park. Prior to 1983, all of those access points were operated and maintained by employees of the M.N. R. Currently 23 of them are operated and maintained by contractors. The remaining six conÂtinue to be operated and maintained by M.N.R. staff. During the five to six month operating period, persons operating access points use facilities provided by the M.N.R. to sell Park permits and provide information to Park users concerning such matters as water levels, fishing prospects, and the number and difficulty of portages. They also maintain the access points by cutting grass, cleaning washrooms, cleaning up litter, collecting garbage, and maintaining parking lots and docks. The M.L.A.P. actually includes two access points, one providing access to Butt Lake and the other (about six kilometres to the north) providing access to Tim Lake. However, both of them are covÂered by a single contract which refers to them jointly under the name Magnetawan Lake Access Point (as does this decision).
A number of access points in the Park, including those covered by these two files, were
first contracted out in 1983. There were no tenders at that time as they were contracted out through a waiver of tender. In 1983, the operation and maintenance of M.L.A.P. was contracted out to Garnet Fraser, who had previously operated and maintained that access point as an employee of the M.N. R. In the following year, advertisements were placed in local newspapers seeking tenders in respect of the operation and maintenance of seven access points, including those covered by these two files. Tenderers were required to submit operating plans and financial bids expressed in terms of the percentage of total revenues from the sale of Park permits which they were prepared to remit to the Treasurer of Ontario. (In some instances, the operator is permitted to retain all of the Park permit revenue and is also paid a subsidy, in recognition of the relatively small amount of revenue generated by permit sales in some areas.) Successful bidders are selected on the basis of their financial bids and the score assigned to their operating plans by the M.N. R. Based on the tenders which he submitted, Mr. Fraser was awarded contracts in respect of the M.L.A.P. in 1984, 1985, and 1986-87. Although the evidence is somewhat meagre on the point, it appears that he carried out his duties and responsibilities under those contracts personally, without the assistance of any employees.
- In 1988 the successful bidder for the M.L.A.P. operation and maintenance contract was
John McCormack (who is Elsie McCormack's son). Under the contract which he signed with the
M.N.R. in the Spring of 1988, Mr. McCormack was given permission to occupy and operate the concession facility" described in Schedule "A" to that contract as a main building consisting of a one bedroom trailer residence with a small office structure attached to it, a small storage building, two parking lots, two vault toilets, dock facilities, and certain litter collection facilities. The conÂtract also provides that if Mr. McCormack satisfactorily observes and performs all of its conditions and covenants, it may be renewed for up to four years (i.e., 1989, 1990, 1991, and 1992). It requires Mr. McCormack to pay rent to the Treasurer of Ontario in the sum of a specified percentÂage of all revenue collected from the sale of Park camping and day use permits during the Park's twenty-three week operating season (less the cost of any capital cost replacement projects approved by the Minister for performance during the off season). Other schedules to the contract detail such matters as operating conditions, insurance requirements, occupational hazards, and equipment provided by the Crown (including furniture, appliances, and radio communication equipment).
Mr. McCormack's fiancee Laurie assists him in operating M.L.A.P. Mr. McCormack has a full-time job in Huntsville and is only at the access point on weekends and a few times during the week. In his absence, his fiancee sells Park permits and performs the other duties imposed by the contract. When he was asked by Crown counsel whether his fiancee was his employee, he replied somewhat light-heartedly, "Yes and no.... When I worked with [a particular firm] I was a foreman and employees listened. Laurie doesn't." Although he does not actually pay her a salary but rather merely deposits the proceeds of the contract into their bank account, Mr. McCormack makes unemployment insurance and income tax remittances in respect of his fiancee and shows a salary to her as an expense for income tax purposes. He described the operation as being more in the nature of a joint venture between them rather than one involving an employment relationship.
As an employee of the M.N.R., Elsie McCormack's husband became the first access point attendant at the R.L.A.P. in 1970. After informally assisting her husband in operating and maintaining that access point for several years, she became a part-time employee of the M.N.R. in 1978. Unfortunately, her husband suffered a stroke later that year. In the following year, she applied for and obtained the position which he had formally held as the operator of R.L.A.P. When the M.N.R. decided to contract out the operation and maintenance of that access point in 1983, Ms. McCormack became the contractor. Based on the tenders which she submitted, she was also awarded contracts for the operation and maintenance of that access point in 1984, 1985, 1986-87, and 1988. The latter contract is similar to the one described above in respect of M.L.A.P., although some of the details differ, such as the specified percentage of Park permit revenue to be paid to the Treasurer of Ontario, the description of the "concession facility" (which includes a log cabin that is a combination office and residence, a small storage building, a garbage storage buildÂing, and a canoe dock and boat launch), and the items of equipment provided by the Crown. It also provides for renewal for up to four years. As a contractor, Ms. McCormack performs essenÂtially the same duties that she performed as an employee of the M.N.R., although as a contractor she has been required to assume some additional responsibilities, such as those reflected in the contractual provisions which require her to obtain, at her own expense, minimum public liability and property damage insurance of two million dollars. Ms. McCormack has never had any employÂees at any time during the six years that she has been the contractor at R.L.A.P., although she has received some gratuitous assistance from members of her family.
Ethel LaValley has been employed by the M.N. R. as an information counsellor in its Parks Department since 1974. Since 1980 she has been the President of O.P.S.E.U. Local 306, which has jurisdiction in the Algonquin District. She has also served as an elected Director on O.P.S.E.U.'s Executive Board for the past five years. When the M.N.R. transferred some employÂees in the Algonquin District to the Algonquin Forestry Authority in the early 1980's, Ms. LaValÂley spoke with Dalton Chapman, an O.P.S.E.U. staff representative, to find out if anything could be done for them. Mr. Chapman subsequently advised her that he had checked with the Union's head office and had been told that the Act did not apply. In 1983 and 1984 Ms. LaValley became aware through her position in the Parks Department that the operation and maintenance of a numÂber of access points in the Park were going to be contracted out. This was a cause of concern for her as President of Local 306. When she expressed her concern to Mr. Chapman or another O.P.S.E.U. staff representative, she was told that nothing could be done. Nevertheless, she mainÂtained a personal interest in the matter and discussed the situation with James Clancy after he was elected President of O.P.S.E.U. She advised him that contracting out was taking place in the Park and that although she did not think that it was a good way for the M.N.R. to treat past members, she was not sure how to fight it. In the summer of 1985 while Mr. Clancy was touring the AlgonÂquin area in his capacity as the new President of the Union, Ms. LaValley brought him to R.L.A.P. to speak with Ms. McCormack. Ms. LaValley selected that access point as the one for Mr. Clancy to visit because it was close to Huntsville (where Mr. Clancy had been meeting with members of an O.P. S. E.U. local), and because she felt that Ms. McCormack would give them an honest opinion about how she felt about becoming a contractor and ceasing to be a Ministry employee. When they asked her about her situation, Ms. McCormack told them that while it would have been nice to remain an M.N.R. employee, "half a loaf' was better than nothing, given the cutbacks which were taking place. Thus, she left them with the impression that she felt fortuÂnate to have the work, and did not want them to file a grievance or take any other action in respect of her contract. Ms. LaValley did not take Mr. Clancy to any other access points because of time limitations and because she felt that since many of the contractors had dedicated most of their lives to running those access points, they would not want to "ruffle any feathers" and thereby risk losing the work.
File No. 1617-88-R pertains to the M.N.R.'s contracting out of the marking and tallying of trees in part of its Lindsay District to John Knight and Lorraine Norris, who are partners carryÂing on business as Agassiz Forestry/Environmental Services. (For ease of reference, that partnerÂship will be referred to in this decision as "Agassiz".) The tender for the contract in question was not advertised by the Ministry. An Official of the Ministry's Lindsay District wrote the following letter in July of 1988 to various firms which were felt to be capable of performing that work:
Lindsay District is currently requesting bids for a tree marking contract for 93 hectares.
Attached is a sample contract and a request for tender. Tenders will be opened at 2:00 p.m. on August 19th, and the final date for completion of marking is October 28th, 1988.
It is a condition of the tender that the tree marking crew be supervised at all times by a graduate of a two or four year forest management programme. You must have attached to your bid a covÂering letter which provides a brief description of your timetable, organization of marking crew and how the education/experience of staff provided by you would qualify your company to sucÂcessfully complete this project.
It is not a condition of tender that sites need to be inspected prior to bidding. Prior to comÂmencement of marking, however, the project supervisor of the successful tenderer must preÂview, with the management forester, the areas to be marked.
Please note the Summary and Calculation for Payment on page 3 of Schedule C, Section 5. For payment, tree marking quality must be 90% or greater; repair marking will be necessary if marking quality is less than 90%.
Also please note that the Successor Rights (Crown Transfers) Act may apply to this agreement. If you have any questions, please contact Bruce Parks at this office.
Agassiz and four other firms submitted tenders in response to that request. After Mr. Knight was advised that Agassiz's bid had been accepted, he sent a performance deposit to the Ministry and confirmed, in the covering letter, that he and his partner were familiar with the Act and realized "the possible situation it may have towards this contract". Under the terms of the written contract which was subsequently signed, Agassiz agreed to mark and tally trees on a total of 93 hectares of public land owned by the Ganaraska River Conservation Authority and managed by the M.N. R. The purpose of that work was to select individual trees which would later be cut down (by someone else) as part of a thinning process. Mr. Knight and Ms. Norris performed that work by using yellow paint to place three dots on forty to forty-five percent of the conifer plantaÂtion, and by using an instrument called a diameter curve to measure the diameter of the marked trees (from which the volume of wood marked for removal could be estimated).
Mr. Knight, who has an Honours Bachelor of Science degree in biology from Lakehead University and a Forest Technician Diploma from Algonquin College, was employed by the M.N.R. in various locations as a seasonal employee in the spring and summer months of each year from 1976 to 1980, then under a series of nine-month contracts in the period from 1981 to 1985, and finally as a crew foremen during the summer and fall of 1986 (after which he worked for the M.O.T.). During his employment with the M.N.R., Mr. Knight spent some of his time performing work similar to that covered by the Agassiz contract. Ms. Norris, who has a Forest Technician Diploma from Sir Sandford Fleming College, was employed by the M.N.R. as a seasonal employee for five summers (in the period from 1983 to 1987). During that time she performed a variety of tasks including tree planting and forest fire detection work. At the time they applied for the aforeÂmentioned tree marking and tallying contract, the Agassiz partners were already under contract with the M.N. R. to perform a creel census in the Lindsay District. They proposed to perform the tree work on days the creel census did not run, and to later devote all of their working efforts to it after the creel census had been completed.
Mr. Knight and Ms. Norris used their own equipment and supplies to perform the work covered by the tree marking and tallying contract. They did not hire any employees to perform any of the work. The proceeds of the contract were shared equally by the two partners. Geoffrey HigÂham, the M.N.R.'s District Forest Supervisor for the Lindsay District, told the Board that there is a possibility that trees in the area covered by that contract may have been marked ten or fifteen years ago by M.N.R. employees as part of a process which provides access to the area by removing every fourth row of trees. However, it appears that the work performed under the Agassiz contract was the first marking that was performed there for thinning purposes. Both of those types of markÂing form part of the M.N.R.'s forest management program.
The M.N.R. has done tree marking and tallying in the Lindsay District every year for at least the past six years, but the locations in which it has been done have changed each year in accordance with the nature of the Ministry's forest management program, which requires different areas to be planted and tended at different times. Marking and tallying of trees was first contracted out by the M.N. R. in 1987 in the Lindsay District. That earlier contract was awarded to Maple Leaf Forestry & Ecological Service Ltd., which was selected as the successful bidder following a request by the Ministry for tenders. That contract was similar to the one awarded to Agassiz, but called for tree marking and tallying to be performed in different portions of the District.
As indicated above, some of the evidence adduced pertains to more than one file. It is unnecessary to set forth that evidence in detail. However, certain facts which emerge from it may appropriately be noted at this point. The evidence indicates that local union officers and stewards became aware of the contracting out of services such as snow plowing and operating of access points soon after they were first contracted out. At least some of that information was passed on to Union staff representatives (who are employees of the Union stationed in the field to service local unions). Some consideration was given at the local level to filing grievances, but it was concluded that grievances would not succeed because the Crown had the right to contract out work, and because seasonal employees, who were the persons most greatly affected by contracting out, had no recall rights under the collective agreement at that time. (A provision which required the Crown to offer non-probationary seasonal employees employment in their former positions in the following season on the basis of seniority was included in the January 1, 1984 to December 31, 1985 collective agreement, which was signed on October 30, 1986.)
The Union's head office in Toronto is divided into a number of departments. ApplicaÂtions under the Act are the responsibility of its Organizing Department. Persons in that departÂment were aware in the early 1980's that contracting out of various services in various Ministries was occurring, but they had no knowledge of specific instances at that time. When a Union staff representative contacted the Organizing Department in the summer of 1983 to find out if anything could be done about the job loss which had resulted from the contracting out of cafeteria services at Alfred Agricultural College, Barbara Linds (who was a Union staff officer in the Organizing Department at that time) obtained a legal opinion concerning the applicability of the Act. After noting that typically the type of transaction covered by the Act was the acquisition by a private organization of an entire section or part of a section of a government service such as sewage and water works or a psychiatric facility, that opinion concluded (by analogy to the Board's jurispruÂdence under section 63 of the Labour Relations Act) that since nothing tangible or intangible had moved from the College to the contractor except the work of running the cafeteria, it was unlikely that it would be characterized as a transfer of an undertaking under the Act. The opinion also noted that an unsuccessful application under the Act in that case might have unfortunate ramificaÂtions in the future. That opinion guided the Organizing Department's view of the scope of the Act until April of 1987, when the Crown's application for judicial review of the Board's decision in KBM Forestry Consultants Inc., [1987] OLRB Rep. March 399 ("KBM"), was dismissed by the Divisional Court. Prior to that, the Union had attempted to use political action and collective barÂgaining to curb privatization.
Thus, prior to the KBM decision, contracting out had generally been viewed by the Union as a legally unchallengeable exercise of Crown rights. As the danger posed to members' job security by privatization became increasingly apparent over the years with the Crown's expanding use of contractors, the Union devoted greater resources to its opposition and ultimately embarked upon a widespread campaign against it. Early in 1988 a committee of head office department heads was formed, as was a Union task force concerning privatization. Through questionnaires and other forms of communication with local union officials, O.P.S.E.U. attempted to obtain as much detailed information as possible about contracting out, in order to be in a position to file applicaÂtions under the Act. Documentation concerning contracting out was also obtained by the Union by means of an application under the Freedom of Information and Protection of Privacy Act, 1987. The first applications which the Union filed under the Successor Rights (Crown Transfers) Act perÂtained to "fresh" contracting out situations where immediate loss of jobs had occurred or appeared likely. Later applications, such as those presently before us, pertained to more "mature" situations in which the work in question had been contracted out for a number of years.
In May of 1988, a Union staff representative wrote the following letter to persons who had submitted tenders in respect of certain contracts in the M.N.R.'s North Bay district:
I am a representative of O.P.5.E.U. which is party to the Collective Agreement covering employees of the Government of Ontario.
I am writing to advise that by virtue of the Crown Transfer Act, the OPSEU Collective AgreeÂment is binding on all private contractors respecting work contracted from the Government of Ontario.
In particular, you should know that as a contractor, you are obliged to:
(a) offer employment to former Government employees who have completed their proÂbationary period, on the basis of their seniority;
(b) honour the wage, benefits and other obligations under the Collective Agreement.
The law in this respect was confirmed by a decision of the Ontario Relations Board [sic] in Re KBM Consultants Inc. dated March 25, 1987 (Board file number 2721-86-R) and further confiÂrmed by the Supreme Court of Ontario (Divisional Court) by decision dated April 25, 1988.
We will be glad to discuss this matter with you and assist you in the performance of your obligaÂtions should you accept a Government contract. We should advise, however, that if you fail to comply with the Collective Agreement we will be obliged to commence the appropriate proÂceedings against you to enforce it.
R.A. Riley, who was then the M.N.R.'s Acting Assistant Deputy Minister (AdministraÂtion), took strong exception to that letter and, in a letter dated June 17, 1988 to Fred Upshaw, who was the Acting President of O.P.S.E.U. at that time, asserted that it blatantly misrepresented the Crown's contractual obligations and interfered with the M.N.R.'s ability to undertake contractual relations with the private sector. In his response dated July 12, 1988, Mr. Upshaw disputed Mr. Riley's assertions and expressed the view that the M.N.R.'s practice of entering into contracts without advising the contractors of their obligations regarding the collective agreement was causing confusion and hardship for contractors and employees. After Michael Garrett became the M.N.R.'s Assistant Deputy Minister (Administration), he sent a memo in December of 1988 to the Ministry's Regional Directors (and to the Director of its Aviation and Fire Management Centre) instructing them to insert certain specified clauses into all tenders and proposals to advise tenderers of the potential applicability of the Act and the collective agreement.
With respect to File No. 2324-88-R (Forbes), counsel for the Crown contended that in the absence of any evidence that janitorial services at the Centre had ever been performed by Crown employees, the application cannot succeed, as the Union has not established that it ever had a collective agreement with the Crown "in respect of employees employed in the undertakÂing". Thus, it was his contention that the Union was never in a position to seek relief under the Act concerning any transfer of undertaking by M.G.S. to a contractor in respect of janitorial serÂvices at the Centre. Crown counsel made a similar argument concerning File No. 1617-88-R (AgasÂsiz), in respect of which he noted that there is no evidence that selection marking and tallying of trees had ever been done before in the area covered by Agassiz's contract.
As indicated above, it is the position of the Crown, and the other respondents who parÂticipated in these proceedings, that all six applications should be dismissed on the basis of abanÂdonment of bargaining rights by the Union. It is their position that by not bringing an application under the Act, serving notice to bargain, or taking any other action to assert any bargaining rights which it may have had as a result of what may have been a transfer of an undertaking at the time when the contracting out first occurred, the Union abandoned those bargaining rights and thereby disentitled itself to any relief under the Act.
As an alternative argument in respect of File Nos. 0956-88-R (Lightfoot) and 1884-88-R (John McCormack), Crown counsel submitted that where, as in each of those cases, the subject matter of the contract was contracted out to another contractor in the period preceding the conÂtract to which the application pertains, the application cannot succeed because bargaining rights do not flow from one contractor to another. He referred the Board to Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193, in support of that proposition. Counsel further submitted that those two applications cannot succeed because the continuity which would have been present if the work had been performed by Crown employees immediately prior to the contract was lacking. Thus, it was his contention that an application under the Act can only succeed in the context of the first instance of contracting out of work previously performed by Crown employees, and not in respect of any subsequent contracting out of that same work to another contractor, unless there has been an interval between contracts during which the Crown has resumed performance of the work by assigning it to Crown employees. (Crown counsel referred to this submission as the "lack of contiÂnuity" argument, and we have adopted that terminology herein for ease of exposition.) Thus, it was Crown counsel's position that an undertaking only reverts to the Crown if, following the expiry or termination of a contract, Crown employees are used to perform the services previously perÂformed by the contractor.
As a further alternative, counsel for the Crown submitted that if the undertaking does revert to the Crown upon expiry or termination of a contract, an application under section 2(1) cannot succeed in respect of the next contract because, at the time of the transfer effected by the next contract, the Union does not have "a collective agreement with the Crown in respect of employees employed in the undertaking", as is required to make that provision applicable.
Crown counsel further submitted that the applications in File Nos. 0956-88-R (LightÂfoot), 1617-88-R (Agassiz), 1884-88-R (John McCormack), 1885-88-R (Elsie McCormack), and 2324-88-R (Forbes) cannot succeed because section 2(1) applies only where an undertaking is "transferred from the Crown to an employer", and none of the contractors in these files is an emÂployer" as each of them has no employees. In support of that contention, he referred the Board to Sack and Poskanzer, Labour Law Terms, which defines "employer" as a "person who engages othÂers to work under his or her direction and control"; CCH Canadian Labour Terms (8th Ed., 1984), which defines "employer" as a "person or firm having control over the employment of workers and the payment of their wages"; and the following dictionary definitions of the term: The Shorter Oxford English Dictionary (3rd Ed.): "One who employs; spec. one who employs servants, workÂmen, etc. for wages"; The Canadian Living Webster Encyclopedic Dictionary of the English Language: "One that employs"; Funk & Wagnall's Comprehensive Standard International Dictionary (1973): "One who employs a person or business firm that employs workmen, servants, etc. for wages"; and A New English Dictionary On Historical Principles (1897): "One who employs.... One who employs servants, workmen, etc. for wages." In this regard, it was the conÂtention of counsel for the Crown that it is significant that the Legislature used the word "emÂployer" in section 2(1) rather than broader terminology such as "person", "individual", or "firm". With respect to File No. 1884-88-R, counsel for the Crown submitted that even though Mr. McCormack may have technically had his fiancee on his payroll for income tax purposes, in subÂstance their relationship was more a partnership than an employment relationship. Counsel for the McCormacks adopted and supported Crown counsel's submissions and suggested that the Board should not find either of his clients to be an employer as neither of them falls within the ambit of the mischief which the Act was designed to correct. He also suggested that the working relationÂship between Mr. McCormack and his fiancee was best described as a joint venture. In making submissions to the Board on behalf of Agassiz, Mr. Knight also contended that the Union's appliÂcation in File No. 1617-88-R could not succeed as Agassiz was a partnership which had no employÂees and, therefore, was not an "employer" within the meaning of the Act.
In responding to those submissions, counsel for the Union submitted that in order to enable the purposes of the Act to be achieved, "employer" should be interpreted to mean "the person to whom the undertaking has been transferred". It was his position that the interpretation advocated by the respondents would permit the Crown to subvert the Union's bargaining rights by replacing employees with individual contractors. He further contended that it would be impractical to find that the Act applies only to a contractor such as Mr. Forbes if he hires an employee to replace him while he is sick or on vacation. It was also submitted on behalf of the Union that the collective agreement obliges contractors to become employers by requiring them to offer seasonal work to seasonal employees who have seniority.
In responding to Crown counsel's submissions concerning abandonment, counsel for O.P.S.E.U. contended that abandonment cannot be found in the absence of a voluntary and conÂscious action or statement on the part of the Union. He submitted that the Union's unawareness (until the Spring of 1987) that the Act covers contracts such as those described in KBM provides a defence to any suggestion of abandonment. He further contended that even if the KBM decision had existed in the early 1980's, the collective agreement's lack of recall rights for seasonal employÂees would have rendered it impractical for the Union to perform the "academic exercise" of filing applications under the Act to obtain "theoretical rights". It was also his contention that even before KBM , the Union had not shown the kind of disinterest generally associated with abandonÂment in that it had persistently objected on a political level to contracting out. Union counsel argued that in view of the serious detriment which the Union would suffer if found to be precluded from asserting its rights under the Act by reason of abandonment, no such finding should be made in the absence of very strong evidence. He also submitted that the letter quoted in paragraph 27 of this decision indicates that as of July of 1988, the Crown did not view the Union as having abanÂdoned its bargaining rights. He further submitted that the correspondence referred to in paragraph 35 of this decision is also inconsistent with abandonment.
As an alternative argument, Union counsel submitted that even if the Board were to find that the Union had abandoned bargaining rights in respect of earlier contracts, such abandonment would be of no relevance in determining the Union's rights in respect of the contracts which are before the Board in the instant applications. In this regard it was his contention that an underÂtaking is transferred to a contractor each time the Crown enters into such a contract, and that the undertaking reverts to the Crown on the termination of the contract. If the Crown subsequently enters into a new contract (with that or another contractor) the undertaking is again transferred by the Crown, thereby creating a fresh opportunity for the Union to make an application under the Act. Union counsel agreed with Crown counsel that there is no succession of bargaining rights from contractor to contractor, but submitted that each transfer of an undertaking by the Crown to a contractor gives rise to a fresh opportunity for the Union to assert its bargaining rights by filing an application under the Act.
It was also Union counsel's position that the word "employees" in the section 2(1) phrase "collective agreement with the Crown in respect of employees employed in the undertakÂing" should be interpreted to mean "those who would do the work if done by the Crown". Thus, he contended that the inclusion of that phrase in section 2(1) does not mean that Crown employees must have been doing the work immediately before the undertaking was transferred. In support of that position, he noted the seasonal nature of much of the work, as well as the changeable nature of the services provided by the Crown. It was also submitted on behalf of the Union that the conÂstruction urged by the Crown is contrary to the Act's purpose of protecting bargaining rights, as it would enable the Crown to effectively eliminate the Union's bargaining rights by laying off the Crown employees who had been performing certain work, and then contracting out that work to a contractor shortly after the layoff at a time when no Crown employees were employed in the undertaking, or by contracting out seasonal work during the off season when no Crown employees were employed in the undertaking.
In his reply argument, Crown counsel submitted that abandonment of bargaining rights can occur through inadvertence. He further submitted that the lack of recall rights for seasonal employees prior to 1986 did not excuse the Union's failure to protect its bargaining rights by makÂing applications under the Act and enforcing the wage, benefit, dues deduction, and other applicaÂble provisions of the collective agreement. He refined his earlier submissions concerning the interÂpretation of section 2(1) by indicating that he was not suggesting that for that provision to be applicable there must have been Crown employees performing the work immediately prior to the contracting out. He submitted in his reply argument that the use of the present tense in that proviÂsion indicates that the section only applies where Crown employees have performed the work in question at some point during the term of the collective agreement in force at the time of the conÂtracting out.
In replying to Union counsel's arguments concerning the meaning of "employer", Crown counsel contended that the Act was not designed to apply to contractors who performed all the work under their contracts themselves without the assistance of any employees. He disputed Union counsel's contention that the collective agreement requires a contractor to become an employer; it was his contention that nothing in the collective agreement precludes members of management from performing bargaining unit work. He further submitted that no meaningful barÂgaining or collective agreement enforcement could take place in the context of a contractor who has no employees and is under no obligation to hire any. Crown counsel did not dispute the asserÂtion made by Union counsel during the course of these proceedings that, as a matter of law, there can be no abandonment of the bargaining rights which the Crown Employees Collective Bargaining Act has conferred upon the Union vis-a-vis the Crown in respect of Crown employees. However, he vigorously disputed the Union's contention that an undertaking reverts to the Crown each time a contract expires, and that there is a fresh transfer of the undertaking when the next contract is entered into by the Crown and that (or another) contractor.
The Act provides, in part, as follows:
1.-(l) In this Act,
(a) "bargaining agent" means an employee organization that has representation rights under the Crown Employees Collective Bargaining Act or a trade union or council of trade unions that is certified as a bargaining agent under the Labour Relations Act;
(b) "Board" means the Ontario Labour Relations Board;
(c) "collective agreement" means an agreement in writing between the Crown or an employer and an employee organization, trade union or council of trade unions coverÂing terms and conditions of employment;
(d) "Crown" means Her Majesty in right of Ontario;
(e) "employer" means an employer other than the Crown;
(f) "transfer" means a conveyance, disposition or sale;
(g) "Tribunal" means the Ontario Public Service Labour Relations Tribunal;
(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 underÂtaking, the employer is bound by the collective agreement as if a party to the collective agreeÂment until the Board declares otherwise.
4.-(l) Where an undertaking was transferred from the Crown to an employer or from an employer to the Crown and an employee organization, trade union or council of trade unions was the bargaining agent in respect of employees employed in the undertaking immediately before the transfer and,
(a) a question arises as to what constitutes a unit of employees that is appropriÂate for collective bargaining purposes in respect of the undertaking; or
(b) any person, employee organization, trade union or council of trade unions claims that by virtue of section 2 or 3, a conflict exists as to the bargaining rights of the employee organization, trade union or council of trade unions,
any person, employee organization, trade union or council of trade unions concerned may apply to the Board, in the case of the transfer of the undertaking to an employer, or to the Tribunal, in the case of the transfer of the undertaking to the Crown, and the Board or the Tribunal, as the case requires,
(c) may determine the composition of the unit of employees referred to in clause (a);
(d) may amend, to such extent as the Tribunal or the Board considers necesÂsary,
(i) any bargaining unit in any certificate issued to any trade union or council of trade unions,
(ii) any bargaining unit defined in any collective agreement,
(iii) any unit of employees determined by the Tribunal to be approÂpriate for collective bargaining purposes in respect of the underÂtaking, or
(iv) any unit of employees that is designated by the Lieutenant GovÂernor in Council as an appropriate bargaining unit for collective bargaining purposes in respect of the undertaking.
In the KBM decision, the majority of another panel of the Board wrote, in part, as follows in describing the purpose and scope of some of the provisions of the Act:
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)-(l) 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.
Comparable provisions under section 63 of the Labour Relations Act (also referred to as "secÂtion 63") are as follows:
63.-(1) In this section,
(a) "business" includes a part or parts thereof;
(b) "sells" includes leases, transfers and any other manner of dispoÂsition, 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 busiÂness has been sold is, until the Board otherwise declares, bound by the collective agreement as if he had been a party thereto
In both statutes, there is provision for the Board to determine the composition of the bargaining unit where it is necessary to do so.
The Successor Rights (Crown Transfers) Act was enacted to fill the gap left by the fact that section 63 of the Labour Relations Act does not apply to the Crown: Municipality of MetropoliÂtan Toronto, [1975] OLRB Rep. Oct. 777. In enacting the new statute, however, the Legislature employed wording different from that found under the parallel section 63 of the Labour RelaÂtions Act. That wording reflects the nature of certain of the wide range of activities engaged in by government. Thus even though jurisprudence under section 63 of the Labour Relations Act is applicable to applications under the Successor Rights (Crown Transfers) Act (see, for example, The Ministry of Natural Resources, [1986] OLRB Rep. March 331), cases under the latter statÂute must be considered in the context of the wording of that Act. As the Board said in The MinÂistry of Natural Resources, supra, at paragraph 4, "the Successor Rights (Crown Transfers) Act was intended to apply at least to circumstances analogous to those in which the Board has found a 'sale of a business' under section 63 of the Labour Relations Act" (emphasis added). The Board's interpretation of section 2 of the Successor Rights (Crown Transfers) Act is not limited by its interpretation of section 63 of the Labour Relations Act, but must be given a broad interÂpretation (a general principle also applied to section 63) which takes into account the extensive definition of "undertaking". For example, in our view, it does not require the transfer of physiÂcal assets, as suggested by counsel for KBM, nor does the length of the contract affect whether it is a "transfer", as suggested by counsel for the Crown. Underlying the legislation is the recogÂnition (a recognition also underlying section 63 of the Labour Relations Act) that "the continuity of the work performed before and after the transfer [is of "particular significance"], 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": Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193, paragraph 32, cited in The Ministry of Natural Resources, supra. More specifically in the context of the Successor Rights (Crown Transfers) Act, the gains achieved by the union with respect to the jobs which are integral to a particular government proÂgram are not to be lost through the government's transferring that program (and those jobs) to a private entity (and vice versa). From another perspective, it may be said that whatever protecÂtions or conditions accrue to those jobs through representation by the union are not to be threatened through the government's transferring the program or portion of a program, of which they are a part, to a private entity.
It has been held that under section 63, the transfer of work alone does not meet the requireÂments of the section: see, for example, British American Bank Note Co. Ltd., [1979] OLRB Rep. Feb. 72 and Corporation of the City of Stratford, [1985] OLRB Rep. June 923. Under secÂtion 63, that which may be sold is the predecessor employer's business or portion of a business which has been defined in relation to economic organization, including physical assets, operating personnel and goodwill: Metropolitan Parking Inc., sup ra, and cases cited therein. Under secÂtion 2, on the other hand, that which may be transferred or conveyed includes "projects" or "programs" or "work". We do not necessarily conclude that "work" within the meaning of secÂtion 2 means the same type of work as that the transfer of which does not alone satisfy the requirements of section 63, i.e., the performance of labour; more appropriately, work must be read within the context of the word "undertaking". However, it is not necessary for us to decide that issue in this case. We are satisfied that in this case a "program" or "project" is the most relÂevant form of undertaking listed in section 2. A program or project may be defined as the interÂrelated steps or functions (or "the work") established for the purpose of achieving a particular objective. The concept of "title" cannot attach to a project or program (although title to equipÂment or land might pass; however, we have already said that the transfer of either equipment or land is not necessary to a transfer within the meaning of section 2). Here, 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 interÂest in ensuring that the work performed by KBM is performed in a manner consistent with the standards established by the Ministry for the reforestation program. That brings it squarely within section 2 of the Successor Rights (Crown Transfers) Act. We are satisfied that there has been a continuation of the work and jobs, that OPSEU is the bargaining agent for employees performing that work and that the Crown and OPSEU are parties to a collective agreement applying to that work.
In considering the purpose and scope of section 2(1) of the Act, reference may also useÂfully be made to the following passages from the Board's decision in Charmaine's Janitorial Services, [1988] OLRB Rep. Sept 871 ("Charmaine"):
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 barÂgaining 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 perÂform:), 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 whenÂever 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.
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(l)(h) does not state that "undertaking" includes the enumerated words, but rather that it means those words and therefore is limÂited 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.
As the Divisional Court indicated in KBM, supra, however, the provision of services may constitute an undertaking within the meaning of clause l(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 govÂernment 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.
Thus under section 63, which is concerned with the private sector, the Board has been insisÂtent 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 reaÂson, 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.
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 assisÂtance or of housing and the functions performed by employees in connection with such proÂgrams 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 characterised 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(l)(h) of the Crown Transfers Act.
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 carÂries 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. The 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 litÂtle 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 undertakÂing 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.
See also The Ministry of Natural Resources, [1986] OLRB Rep. March 331.
Under section 2(1) of the Act, an employer is bound by the collective agreement between the Union and the Crown where an undertaking is transferred from the Crown to the employer and the Union has a collective agreement with the Crown in respect of employees employed in the undertaking. In determining the scope of this provision, we have not found Metropolitan Parking Inc., supra, to be of assistance as that case was decided in the context of what is now section 63 of the Labour Relations Act, which provision is narrower in scope than secÂtion 2(1) of the Successor Rights (Crown Transfers) Act. Moreover, we do not read that case as authority for the proposition that if contracting out certain activities does constitute a sale of a business for successorship purposes, contracting out those activities to a different contractor after the first contract expires or is terminated will not constitute such a disposition.
It was not suggested in respect of any of the six applications presently before us that no "undertaking" was involved. Indeed, counsel for the Crown acknowledged that it would be very difficult to distinguish the subject matter of the contracts in KBM and Charmaine from the subject matter of the contracts in the instant applications. Having regard to the breadth of the section 1(1)(h) definition of that term and to the principles set forth in those decisions, we are satisfied that the subject matter of each of the contracts is an "undertaking" within the meaning of the Act. The aforementioned janitorial services contracted out by the M.G.S. to Forbes are not materially difÂferent (although somewhat more extensive) than those contracted out by the M.N.R. to Char-maine's Janitorial Services in the case quoted above. Just as the provision of janitorial services in a particular portion of Algonquin Park constituted a part of a Crown enterprise or work, the proviÂsion of janitorial services in respect of the Centre constitutes part of that institution, and also part of the M.G.S. enterprise or program of providing property management and maintenance services in respect of various Crown operations, including the Centre. Similarly, the M.N.R.'s contracting out of the operation and maintenance of M.L.A.P. and R.L.A.P. parallels the contracting out which occurred between the M.N. R. and Hal Luckasavitch, as described in paragraphs 16 and 17 of Charmaine, and which was found (in paragraph 26) to constitute an undertaking. The same is true of the garbage pick-up and disposal services covered by the M.N.R.'s contract with Mr. Light-foot. The provision of such services, without which the operation of the park would be underÂmined, constitutes part of the enterprise or work carried on by the M.N.R. known as Emily ProÂvincial Park. The marking and tallying of trees forms part of the M.N.R.'s forest management program, just as the lifting of nursery trees and transplanting of seedling stock described in paraÂgraphs 12 to 14 of Charmaine formed part of its reforestation program. Similarly, the aforemenÂtioned snow plowing forms part of the M.O.T.'s winter maintenance program. Accordingly, we find on the totality of the evidence that the subject matter of each of the contracts is an "undertakÂing" within the meaning of section 1(1)(h) of the Act.
It is also clear from the evidence that, in each of the six applications, the undertaking has been "transferred", within the meaning of section 1(1)(f) of the Act, from the Crown to a conÂtractor through the contracting out procedures described above. In this regard, we agree with Union counsel's contention that upon the expiry or termination of a contract by which the Crown has transferred an undertaking to a contractor, the undertaking reverts to the Crown. If the Crown subsequently enters into another such contract with that contractor or a different contractor, another transfer of the undertaking occurs.
We turn next to the issue of whether each of the contractors to whom those undertakÂings were transferred was an "employer" at the time of the transfer. The definition of "employer" contained in section 1(1)(e) of the Act is not of any assistance in resolving this issue as it merely indicates that the term "means an employer other than the Crown". As indicated by the aforemenÂtioned materials to which we were referred by Crown counsel, it is certainly possible to define the term "employer" as a person or firm that employs workers for remuneration. However, to conÂstrue the term in that manner in the context of this legislation could give rise to some very anomaÂlous results. At the time a contractor enters into a seasonal contract with the Crown, s/he might well not have any employees as there would be no work for them to perform during the off season. The relatively small amount of work available at the start of some seasonal contracts (such as those involving garbage pick-up and disposal from a provincial park) could lead a contractor to initially perform all of the work personally and to defer hiring an assistant until later in the season when the amount of work to be done increases. Even in the context of non-seasonal work, a contractor such as Mr. Forbes might elect to personally perform all of the work covered by the contract until such time as illness or the need for a vacation prompts him to hire a replacement (or to make other arrangements for the performance of the contract during his absence). In each of those instances, accepting the aforementioned definition of "employer" would result in the contractor not being bound by the collective agreement because s/he would not be an "employer" at the time of the transfer of undertaking. Indeed, such a construction might well enable a contractor to defeat the purposes of the Act by merely deferring any hiring until after the commencement of the contract. On the other hand, a contractor who personally performs the work under the contract without any assistance, but who at the time of the transfer has employees working in another location (not covÂered by that contract) would likely be an "employer" on the basis of the aforementioned definiÂtion, while a contractor without such employees would not. Furthermore, partnerships might obtain contracts covering a substantial amount of work and avoid the application of the Act by hirÂing no employees and having all of the work performed by the partners themselves. These and other such anomalies are avoided if the term "employer" is construed to be a label which the legisÂlation uses to identify the individual, corporation, partnership, association, or other entity to which an undertaking has been transferred. The use of the term "employer" in the section 1(1)(c) definiÂtion of "collective agreement" also supports that interpretation. If, as contended by counsel for the Crown, a person or a firm without any employees is not an "employer", it would presumably folÂlow that an agreement in writing which had been a "collective agreement" between an employer and a trade union would no longer be a "collective agreement" if the employer party ceased to employ anyone and, therefore, ceased to be an "employer". Such a result would be highly anomaÂlous in the context of legislation that is clearly intended to provide stability in respect of bargaining rights. (See, generally, The Municipality of Metropolitan Toronto, [1989] OLRB Rep. March 279, paragraph 17ff.) Construing the term "employer" as a label used to identify the individual, corpoÂration, partnership, association, or other entity to which an undertaking has been transferred is also reflective of the "fair, large and liberal construction and interpretation" which section 10 of the Interpretation Act, R.S.O. 1980, c.219, directs be given to every Act of the Legislature in order to "ensure the attainment of the object of the Act according to its true intent, meaning and spirit." (If, as submitted by Crown counsel, nothing in the collective agreement precludes management from performing bargaining unit work, this construction may result in the collective agreement having no material effect on the contractor's performance of the subject matter of the contract until such time as the contractor actually hires an employee. However, that is a matter for determiÂnation under the arbitration provision included in the collective agreement (or deemed to be so included by section 44 of the Labour Relations Act) and not by the Board in the context of the instant proceedings.)
For the foregoing reasons, we find that each of the six contractors in the cases presently before us was an "employer" within the meaning of section 2(1) of the Act when the aforemenÂtioned undertakings were transferred to them by the Crown. In view of our conclusion that a conÂtractor need not have employees in order to be an "employer" within the meaning of section 2(1) of the Act, we find it unnecessary to determine whether or not an employment relationship exists between John McCormack and his fiancee.
The final prerequisite of section 2(1) is that the Union have "a collective agreement with the Crown in respect of employees employed in the undertaking". In construing that phrase in the context of section 2(1), we have derived some assistance from that subsection's omission of the words "immediately before the transfer", which words follow that phrase in section 4(1) of the Act. The omission of those words from section 2(1) supports the Union's contention that for that provision to be applicable there need not have been Crown employees performing the work in question immediately before it was contracted out. Indeed, as indicated above, Crown counsel acknowledged in his reply argument that performance of the work in question by Crown employÂees immediately prior to the transfer is not a prerequisite of section 2(1). If it were, the applicaÂtions in KBM and Charmaine could not have succeeded as~ in view of the seasonal nature of the work, there would not have been any Crown employees performing it immediately prior to the transfers of undertakings which occurred in those cases. Moreover, the narrow interpretation of section 2(1) on which the "lack of continuity argument" is based gives rise to a serious anomaly from a labour relations perspective. If Crown counsel's interpretation of section 2(1) is correct, even if the Union acted as expeditiously as possible to preserve its bargaining rights by filing and successfully pursuing an application under the Act shortly after an undertaking was first transferred by the Crown to an employer by means of a contract, the Union would be unable to continue to preserve those bargaining rights if, after that contract expired or was terminated, the Crown transÂferred the undertaking to another employer without using Crown employees to perform any of the work in the interim. As indicated above, Union counsel contends that the word "employees~~ in the section 2(1) phrase "collective agreement with the Crown in respect of employees employed in the undertaking" should be interpreted to mean "those who would do the work if done by the Crown". It is unnecessary for purposes of this decision to rule upon the validity of that proposed interpretation, which might bring within the ambit of the Act the contracting out of new functions which have never previously been performed by Crown employees. None of the applications covÂered by this decision involves such a situation. Snow plowing, garbage pick-up and disposal, janitoÂrial work, operating and maintaining access points, and marking and tallying of trees have been and continue to be performed by Crown employees covered by the collective agreement between the Union and the Crown (although the number of Crown employees performing such work has been reduced by contracting out). Without attempting to provide a definitive interpretation of the phrase in question, we are satisfied that it is at least broad enough to encompass situations in which the Union has historically had, and has at the time at which the contract transfers the undertaking to an employer, a collective agreement with the Crown in respect of Crown employees who perÂform the type of functions covered by the contract, irrespective of whether such functions are actuÂally being performed at that time. This interpretation affords due recognition to the aforemenÂtioned difference in wording between sections 2(1) and 4(1), and does not give rise to the aforementioned anomaly. Moreover, it is also reflective of the "fair, large and liberal construction and interpretation" which, as noted above, section 10 of the Interpretation Act directs be given to every Act of the Legislature. In light of our conclusion concerning the meaning of that phrase, we find no merit in Crown counsel's submission that for section 2(1) to apply, there must be evidence that the work in question has been performed in the past by Crown employees in the precise locaÂtion covered by the contract. Thus, it is irrelevant (in respect of File No. 2324-88-R) whether the M.G.S. ever used Crown employees to perform janitorial work at the Centre, as it is clear from the evidence that it has used and continues to use Crown employees to perform that same function at other locations, and that such employees were and are covered by the Crown's collective agreeÂment with the Union. The same is true of the tree marking and tallying described above in respect of File No. 1617-88-R. As indicated above, the M.N.R. has done tree marking and tallying in the Lindsay District every year for at least the past six years, but the locations in which it has been perÂformed have changed each year in accordance with the nature of the Ministry's forest management program, which requires different areas to be planted and tended at different times. To adopt in such a context the approach suggested by Crown counsel would be to unduly narrow the scope of the Act and thwart the attainment of its object of preserving bargaining rights in the context of the transfer of an undertaking from the Crown to an employer.
In view of our conclusion concerning the scope of section 2(1) of the Act, we find it unnecessary to determine whether or not the Union abandoned bargaining rights in respect of any of the contracts entered into between the Crown and contractors prior to the contracts covered by the instant applications. Assuming without deciding that such abandonment did in fact occur, the Union's bargaining rights in respect of those undertakings were restored each time the undertakÂings reverted to the Crown upon the expiry or termination of the contracts by which they were transferred. (In this regard we reiterate that it was not disputed that, as a matter of law, there can be no abandonment of the bargaining rights which the Crown Employees Collective Bargaining Act has conferred upon the Union vis-a-vis the Crown in respect of Crown employees.) Thus, the conÂtracts covered by these six applications each transferred an undertaking from the Crown to an employer at a time at which the Union had a collective agreement with the Crown in respect of employees employed in the undertaking, and thereby created a fresh opportunity for an applicaÂtion under the Act unaffected by any earlier abandonment of bargaining rights by the Union.
For the foregoing reasons, these six applications are granted, and the Board hereby declares that, by virtue of section 2(1) of the Act, the respondents Barry Lightfoot, John Knight and Lorraine Norris c.o.b. as Agassiz Forestry/Environmental Services, John McCormack, Elsie McCormack, Wayne Forbes c.o.b. as Forbes Janitorial Services, and Dunning Paving Limited, are each bound by the collective agreement between the Union and the Crown (as represented by the Management Board of Cabinet).
DECISION OF BOARD MEMBER J. A. RUNDLE; July 18, 1989
I find that I must respectfully dissent from the majority decision. I am of the view that there has been no transfer of an undertaking within the meaning of section 2(1) of the Act in any of these six applications. In this regard, I concur with the following comments made by my colÂleague Board Member F. Burnet in his dissent in KBM:
The wording of [the Successor Rights (Crown Transfers) Act] clearly and specifically defines the kind of "transfers" (of a "business, enterprise, institution, program, project, work, or a part of any of them") that trigger section 2. Only those transfers which constitute a "conveyance, disÂposition or sale" trigger the section.
Each of these latter three terms has a precise legal meaning. A "conveyance" denotes a transÂfer of title; a "disposition" means the parting with, alienation of, or giving up of property; and "sale" is a contract in which one party transfers to the other, for payment, title and possession of property. These are closely related concepts and each of them connotes an ultimate divestiÂture or an alienation of rights. By their exclusive use in section 2, they impart to the general and imprecise word "transfer", the foregoing explicit meanings - and only those meanings.
The facts and circumstances surrounding this transaction are fully set forth in the majority award. Clearly, there was a re-assignment of work from the Ministry to KBM, but equally clearly, there was not a "transfer" within the explicit definition of that term. There was no conveyance, there was no disposition, and there was no sale within the legal meaning of those terms. No titles changed hands in respect of land, equipment, goodwill, or any other assets or property, whether tangible or intangible; nor any alienation or surrender of property; nor any payment allied to such transactions. Since there was no "transfer" within the defined meaning of that term, whether or not the transaction met the definition of "undertaking" in the Act is not pertinent.
In paragraph 10, the majority notes the difference in wording between the relevant sections of the Crown Act and the Labour Relations Act, and because of that difference concludes that in this case, the Board is not limited by its established interpretation of section 63 of the latter Act. I note however that while the general purpose and intent of the two provisions is the same, the wording of the Crown Act is, if anything, more precise and limiting, in that the word "transfer" is the very word that is being defined and made specific. In the Labour Relations Act "transfer" is but part of the definition of the operative word "sell", and its precise meaning is influenced if not determined by the companion words "lease" and "disposition". I conclude that the different wording of the Crown Act is not intended nor does it broaden the meaning relative to the Labour Relations Act, but simply expresses the same intent more precisely. That being so, to whatever extent the jurisprudence under the Labour Relations Act is applicable to the Crown Act on this issue, it is not limited by the difference in the construction of the two sections.
The successor rights provisions of the Labour Relations Act, which preceded the Crown Act were intended to preserve bargaining rights when there was a change in business ownership or in the legal entity representing the business. They were not intended to curtail or govern subconÂtracting practices, which might be undertaken for a variety of legitimate business reasons, including not only labour cost considerations but such objectives as stabilization of employment levels in a fluctuating work load situation, reduction of capital costs, the securing of skills not otherwise available internally, meeting peak customer demand, or, as in this case, an improveÂment in quality. The control of such practices is left to the bargaining process and their enforceÂment is through the agreements' dispute settling provisions. The distinction between the two comments has been carefully set forth in jurisprudence, notably, The British American Bank Note Company, [1979] OLRB Rep. Feb. 72 at page 74:
There are limits, however, to the extent to which section 55 can be used to preserve collective bargaining rights. It is clear that the provisions of this section do not attach bargaining rights to the work being performed by a business but only to the business itself. While this distinction may not be easy to draw in some cases, it is essential that it be maintained since section 55 cannot be interpreted as guaranteeing to a bargaining agent an absolute right of property in the work performed by its members. Section 55 serves only to preserve bargaining rights that have become attached to a business entity so that when that business entity is transferred, either in whole or in part, those barÂgaining rights survive and bind the successor employer.
[emphasis added]
Similarly in Complete Car Care Centre, [1983] OLRB Rep. Aug. 1293 at page 1295, the Board in dismissing an application commented:
Given the purpose and broad language of section 63, the Board has given the section a liberal interpretation and not placed undue reliance on the legal form which a busiÂness disposition happens to take. This does not mean, however, that every business decision which prejudicially affects a Union's bargaining rights will be viewed as fallÂing within the ambit of section 63. In particular as the Board indicated in the Metropolitan Parking Inc. [1979] OLRB Rep. Dec. 1193, the transfer of work standÂing by itself will generally not be sufficient to trigger the application of section 63.
Given the identity of intent and meaning of the two Acts, I think this jurisprudence has equal application to this case.
- Finally, if the simple and straightforward sub-contracting operation here involved is to be governed by the successor rights provisions of the Act, it becomes difficult indeed to think of any instance of sub-contracting that would not trigger the section. As a practical matter therefore, the consequence would be to virtually ban sub-contracting. If so sweeping a departure from established business practice and from established Board interpretations and jurisprudence had been intended by the particular wording chosen for the Crown Act to govern Crown enterÂprises, surely it would have been publicly debated and specifically provided in the legislation in unequivocal terms, and not left to controversial judicial interpretation.
Accordingly, I would dismiss all of the applications on the grounds that there has been no transfer of an undertaking in any of them.
I would also dismiss all of the applications with the exception of File No. 2335-88-R on the basis that none of the contractors in those applications is an "employer". Unlike section 63 of the Labour Relations Act which refers to the successor as the "person to whom the business has been sold", section 2(1) refers to the successor as the "employer". The wording of section 4(1) of the Act also suggests that "person" and "employer" were intended to have different meanings in the context of this legislation; after referring to "an employer", it refers to "any person, employee organization, trade union or council of trade unions". As indicated in the majority decision, the definition of "employer" contained in section 1(1)(e) of the Act is not of any assistance in resolving this issue as it merely indicates that the term "means an employer other than the Crown". HowÂever, the dictionary definitions to which the Board was referred by Crown counsel are of assistance in construing this term. Having duly considered the submissions of counsel and those definitions, I have concluded that, with the exception of the section 1(1)(e) exclusion of the Crown, in the conÂtext of this legislation the term "employer" was intended to mean a person or firm that employs a worker or workers for remuneration.
I would also dismiss the application in File No. 2335-88-R because I am of the opinion that the Union has abandoned any bargaining rights which it may have had in relation to snow plowing in Patrol Number 16 of the Ministry of Transportation's London District.