International Brotherhood of Electrical Workers, Local 586 v. Dare Personnel Inc., 1995 CanLII 10023

International Brotherhood of Electrical Workers, Local 586 v. Dare Personnel Inc.

[1995] OLRB Rep. July 935

3912-94-R; 3913-94-R; 4154-94-U; 4155-94-U International Brotherhood of Electrical Workers, Local 586, Applicant v. Dare Personnel Inc., Responding Party; International Brotherhood of Electrical Workers, Local 586, Applicant v. 1092009 Ontario Inc. c.o.b. as Personnel Force, Responding Party

BEFORE: Janice Johnston, Vice-Chair, and Board Members J. A. Ronson and R. Montague.

APPEARANCES: Peter Engelmann and Tom Reid for the applicant; Catherine Auchinleck for Dare Personnel Inc.; Daniel McGuire for 1092009 Ontario Inc., c.o.b. as Personnel Force.

DECISION OF JANICE JOHNSTON, VICE-CHAIR, AND BOARD MEMBER J. A. RONSON; July 4, 1995

1. File No. 3912-94-R and 3913-94-R are applications for certification made under the construction industry provisions of the Labour Relations Act (the "Act"). File Nos. 4154-94-U and 4155-94-U are applications pursuant to section 91 of the Act.

2. The parties are in dispute concerning a number of issues. This decision shall deal with only one of those issues. At the outset of the hearing the parties agreed that it was appropriate for the Board to deal first with the contention of the responding parties, Dare Personnel Inc. ("Dare") and 1092009 Ontario Inc., c.o.b. as Personnel Force ("P.. Inc.), that they are not the employers of the individuals for whom the union seeks bargaining rights. The question before the Board therefore is "are the persons for whom the union seeks bargaining rights employees of Dare and P.. Inc.". For reasons which will become apparent, it is important to note at the outset that this is the question before the Board not the broader question, namely "who is the employer of the persons in question".

3. The Board heard evidence from seven witnesses over four days of hearing. All the witnesses gave their evidence in a candid straight-forward manner. While there are minor discrepancies in some of the evidence, these discrepancies are for the most part explained by the witnesses' perspective on a certain issue and differences between first and second hand knowledge. Where it is necessary these discrepancies will be pointed out and preference given to one witness's version of events over that of another. It is not necessary to set out in detail all of the evidence heard by the Board and we will not do so.

4. Before turning to the facts of this case it is helpful to set out the jurisprudential backdrop against which the facts will be measured. In the York Condominium Corporation, [1977] OLRB Rep. Oct. 645, the Board stated in paragraph 10:

10. In determining which of two or more parties is or are the employer(s) of certain employees, the Board has applied a series of criteria which are listed below:

(1) The party exercising direction and control over the employees performing the work. — See the Municipality of Metropolitan Toronto case, 61 CALL ¶16,214; the Sentry Department Stores Limited case, [1968] OLRB Rep. 540, 546; the Beer Perkiest Concrete Limited case, [1970] OLRB Rep. 224, 227-8; the Belcourt Construction (Ottawa) Limited case, [1971] OLRB Rep. 321, 324; and the Red's Holdings (Belleville) Limited case, [1972] OLRB Rep. 753, 761.

(2) The party bearing the burden of remuneration. — See the Municipality of Metropolitan Toronto case, supra; the Beer Precast Concrete Limited case, supra; the Kel Truck Services Ltd. case, 1972 CLLC ¶16,068; and the Templet Services case, [1974] OLRB Rep. 606, 608.

(3) The party imposing the discipline. — See the Reid's Holdings (Belleville) Limited case, supra.

(4) The party hiring the employees. — See the Municipality of Metropolitan Toronto case, supra; the Sentry Department Stores Limited case, supra; and the Reid's Holdings (Belleville) Limited case, supra.

(5) The party with the authority to dismiss the employees. — See the Municipality of Metropolitan Toronto case, supra; and the Templet Services case, supra.

(6) The party who is perceived to be the employer by the employees. — See the Sentry Department Stores Limited case, supra.

(7) The existence of an intention to create the relationship of employer and employees. — See the Belcourt Construction (Ottawa) Limited case, supra.

5. Since the York Condominium case the Board has made it clear that the criteria set out above were not to be assigned any particular order or priority and each was to be considered in turn relative to the particular facts of each case. However, the Board has attached a great deal of significance to the question of who exercises fundamental or overriding control over the employees in question. It was put this way in the Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538:

4.4. A particularly important question answerable through an evaluation of all of the factors set out in York Condominium is who exercises fundamental control over the employees. In some cases control over hiring may reflect fundamental control. In other situations, reminiscent of a hiring hall, it may not. In some cases, day-to-day supervision may suggest fundamental control, in others it may not. Similarly with the payment of wages: in the factual mix of some cases the payment of wages may, along with other factors, suggest who holds the fundamental control while in other cases it may be of minor significance. No single factor listed in York

Condominium inevitably points to the possession of fundamental control. The Board's ultimate evaluation of who holds fundamental control in any particular fact situation, however, is generally the single most determinative question in identifying the employer. In a word, to find the seat of fundamental control is generally to find the employer for the purposes of The Labour Relations Act.

6. A good summary of the factors considered by the Board in determining who is the employer was provided in Grant Development Corporation, [1993] OLRB Rep. Jan. 21 at paragraph 26:

26. In determining who is the "employer" of persons who are undeniably the employees of someone (i.e., as opposed to self-employed independent contractors), the Board typically considers a variety of factors, some of which are interrelated or overlap. These include: who exercises direction and control of the employees when doing their work, who allocates their duties, corrects performance, sets standards, determines hours of work, and so on; who sets wage rates and bears the burden of remuneration; who appears to be hiring the employees, imposing discipline (if any) and terminating employment for cause or otherwise; for whose benefit do the employees expend their labour and from what source do their work opportunities appear to arise; to put the matter another way, for whose organization do they appear to be working, and of which organization do they appear to be a part while performing their duties; whom do the employees themselves perceive to be their employer; was there an expressed intention to create an employment relationship, and if so, with whom; does one organization or another hold itself out to be the employer; and, apart altogether from common-law considerations, what choice appears to be more consistent with the statutory and labour relations framework within which the Board operates, and the decision must be made. None of these factors is necessarily determinative. Each case must be considered on its facts. However, the Board must be careful not to let commercial form obscure labour relations realities. (See generally cases such as York Condominium Corporation, [1977] OLRB Rep. Oct. 645; Ralston Purina Canada Inc., [1979] OLRB Rep. June 552; Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538; Sylvania Lighting Services, [1985] OLRB Rep. June 1173; Thunderhawk Developments, [1983] OLRB Rep. Aug. 1378; Alwell Forming Limited, [1978] OLRB Rep. Aug. 709; and, more recently, Nichirin Inc., [1991] OLRB Rep. Jan. 78.)

7. Dare and P.F. Inc. are personnel agencies whose primary work involves supplying office, clerical and administrative staff on a short term basis to a variety of clients including the Federal Government. In recent years their service has expanded to include the supply of trades people, including electricians, to the Federal Government. In this case we are dealing with the supply of electricians to the Department of Public Works and Government Services Canada ("Public Works"). The electricians are supplied pursuant to a contractual arrangement referred to as a "standing offer". The standing offer of any one agency also incorporates other documents which when read together outline the various contractual agreements and undertakings made by the personnel agency. It is clear in the standing offer and the other documents that the personnel agency is set out as the "employer" of the various temporary workers. Obviously, if the legal form of the arrangement between Dare and P.F. Inc. and the Federal Government was the determinative factor, our inquiry could end at this point. However, the Board in determining employee-employer status must look beyond the legal or commercial arrangements between the supplier and the recipient of temporary services (see in this regard Sylvania Lighting Services, [1985] OLRB Rep. July 1173 and Grant Development Corporation, supra). Thus the fact that the legal documents reflect that Dare and P.F. Inc. are the employers is not determinative of this issue.

8. In late 1994 and early 1995 Dare and P.F. Inc. advertised for qualified electricians. When an individual electrician responded by telephone he/she would be informed that the rate of pay was significantly less than the unionized rate of pay. If the electrician was still interested in work referrals then he/she would go to the office of P.F. Inc. or Dare. At that time the individual would fill out an application form, undergo a short interview and have copies taken of his/her electrician's license(s). References provided by the electrician were checked. If work became available the electrician would be referred to a job site. The vast majority of work available for temporary electricians was with Public Works. For work in certain government buildings, security clearance was necessary. P.F. Inc. and Dare had blank copies of the requisite forms. They would request that the electrician fill out the forms and do whatever else was necessary prior to sending them to the branch in the Federal Government responsible for issuing the security clearance. If a certain job required a certain level of security clearance, a temporary electrician could not be referred to that work unless the appropriate clearance had been provided by the Industrial and Corporate Security Branch of Supply and Services Canada.

9. The evidence clearly establishes that Dare and P.F. Inc. do not exercise any direction and control over the day-to-day work activities of electricians they refer to Public Works. Dare and P.F. Inc. give the temporary electricians an address to report to. Once an individual reports to this address a foreman employed by Public Works either tells him/her where the work site is or takes the individual there personally. Jim Golden, a foreman at Public Works takes a copy of the electrician's license(s) and S.I.N. number before sending or taking him/her to the job site. Once on the site, work direction is provided by a key person who is normally a full-time Public Works electrician. While working on a Public Works' site, the temporary electrician is fully integrated into the crew. He/she is bound by all Public Works policies such as, for example, smoking policies. The temporary electrician performs the same work, works the same hours and takes the same breaks as the Public Works' employees. Direction and control of the temporary electricians while they are doing their work and the allocation of daily duties is provided by Public Works. No on-site supervision is provided by Dare or P.F. Inc. Once the temporary electrician commences a job he/she has little or no contact with the personnel agency which made the work referral. Weeks or months can go by, depending on the length of the assignment, with no direct communication taking place between Dare and P.F. Inc. and the temporary electrician. Generally, Dare and P.F. Inc. have no idea what day-to-day work is being performed by the electrician or where it is being performed. If time off is required approval for the absence is sought from the Public Works' employee in charge of the job site. If the temporary electrician is ill, he/she notifies the appropriate Public Works employee. If overtime is to be worked it is offered to all of the crew members on the site. No approval from the personnel agency is sought or required prior to a temporary electrician working the overtime.

10. The Board heard a great deal of evidence regarding the uniforms supplied by Public Works to the Public Works' electricians and not to the temporary electricians. There was a significant discrepancy with regard to who wore their uniforms (or part of their uniforms) and how often they were worn. After having weighed this evidence we are of the view that some employees wear their uniforms some or most of the time. All of the evidence pointed to the fact that there was not a total acceptance of the uniforms. Therefore, on any given day, on any given site, one could not conclusively point to various individuals and say "they do not work for the Public Works Department". In addition, there was some dispute concerning who was invited to and who attended various departmental Christmas parties. It appears that some temporary workers are invited to and attended some of the parties. In any event, in our view, these aspects of the work arrangements are of limited assistance in our determination.

11. A temporary electrician is required to supply his own tool pouch and small hand tools, whereas a Public Works' electrician is issued departmental tools. The power tools and larger equipment is supplied to both types of workers by Public Works. In addition, beepers were supplied to temporary electricians as well as Public Works' electricians and all employees drove Public Works' vehicles. Training was provided by Public Works to the full-time electricians but not to the temporary electricians. The benefits enjoyed by the full-time Public Works' employees are much better than those enjoyed by the temporary electricians.

12. Public Works has the authority to discipline and terminate the contract of a temporary electrician. Jim Golden has spoken to several temporary electricians on a variety of subjects. If a problem arises it is dealt with by the Public Works' foremen. If Public Works does not want a particular temporary electrician initially sent to them they can refuse the person or if they do not want a temporary electrician to continue performing work on their job site, for whatever reason, they can remove that worker and ask for a replacement worker. Therefore, various individuals in Public Works have the authority to make a decision which determines whether an individual electrician will work or not and thereby have the opportunity to earn or continue to earn money. The decision to remove a worker from the site is always made by the Public Works' Department.

13. Dare and P.F. Inc., issue paycheques to the temporary electricians based on completed timesheets which are sent to them from Public Works. Dare and P.F. Inc. provide blank timesheets to either Public Works or the temporary electrician directly. The Board heard a lot of evidence concerning these timesheets which are utilized to determine the pay of a temporary electrician. We heard from different witnesses that either the worker, or the key man on the site, or the foreman fills out the timesheet. It is apparent that the practice varies and that various individuals fill out the hours on the timesheet. Regardless of who fills the timesheet out, unless it is signed by a Public Works' official (normally the foreman) the temporary electrician will not get paid. Similarly, a temporary electrician will not get paid for overtime hours unless payment for those hours is authorized by Public Works. Therefore, regardless of who fills out the timesheets, Public Works is responsible for determining and authorizing payment for hours worked by the temporary electricians. This information is forwarded to P.F. Inc. or Dare who then perform a payroll service for the Public Works' Department. When travel is required the Department of Public Works pays a travel and accommodation allowance directly to the temporary electrician.

14. In assessing who bears the burden of remuneration the Board must look at who is receiving the services for which payment is being made. It is this provision of services which triggers the obligation to pay, not the mere fact that an electrician has registered with either Dare or P. F Inc. as available for work. In our view it is not Dare and P.F. Inc. who bear the ultimate burden of remuneration in this case but the Department of Public Works. The fact that Dare and P.F. Inc. are acting as paymasters does not make them the employer of the temporary electricians (see in this regard Theatre Corp. Limited, [1992] OLRB Rep. Mar. 388 and the cases referred to therein; and Sylvania Lighting Services, [1985] OLRB Rep. July 1173).

15. Prior to issuing payment to a temporary electrician Dare and P.F. Inc. make all of the necessary source deductions such as income tax, CPP and UIC and remit the amounts withheld to the appropriate agency. Dare and P.F. Inc. are responsible for providing Workers' Compensation coverage to the temporary electricians and therefore pay the necessary Workers' Compensation Board assessments. Dare and P.F. Inc. will also issue records of employment on request and "T-4's" to the temporary electricians.

16. In the past, the hourly wage to be paid to the temporary electrician was dictated by Public Works. Dare was told to pay a temporary electrician at the same wage rate as that paid to the full-time Public Works' electricians. This then changed and under the current arrangements the temporary electricians are paid much less than the Public Works' electricians. The only stipulation at this point is that the temporary electricians are not to be paid more than the Public Works' electricians.

17. Much was made by the applicant of the fact that the agencies "hired" the temporary electricians. While the agencies no doubt screened them, ensuring they possessed the requisite licenses and experience prior to referring them to work at the Department of Public Works, this screening and referral function is very similar to the role played by hiring halls in the construction industry. There can be no doubt that the normal functioning of a hiring hall does not create an employer/employee relationship. (See in this regard Theatre Corp. Limited, supra, at paragraph 63, and generally Joe Portiss, [1983] OLRB Rep. July 1160). In addition, the Department of Public Works does not play a completely passive role in the "hiring" of the temporary electricians. Prior to allowing the electrician to commence work, Mr. Jim Golden, the only Public Works' foreman the Board heard from, indicated that he photocopies the electricians' license(s) and Social Insurance Number. In addition, depending on the work site, a temporary electrician may be prevented from working if he/she does not have the necessary security clearance. Given the above, an analysis of the "hiring" process on the facts of this case does not establish that either the personnel agencies or their "clients" are solely responsible for hiring the temporary electricians.

18. Three electricians called by the applicant as witnesses, all of whom have worked as temporary electricians for Public Works, were unanimously of the view that their employer was either Dare or P.F. Inc. The reasons put forth for this opinion were: that the agency paid them; that they responded to an ad put out by the agency; that they filled out an application form for employment with the agency; and that they were interviewed by the agency.

19. The final factor referred to in the York Condominium case is the intention to create an employer/employee relationship. In spite of the legal and commercial documentation to the contrary, Jocelyn Vitanza, the principle for Dare and Paul Gillissie, the principle for P.F. Inc. made it clear that they do not view the temporary electricians to be their employees. In signing their standing offer with the Federal Government, it was not their intention to create an employment relationship with the temporary electricians or any other worker supplied pursuant to that agreement. In determining whether P.F. Inc. and Dare are the employers of the temporary electricians the Board must assess all of the facts before it and look beyond the "paper transactions". In this case there is no reason to doubt that Dare and P.F. Inc. do not view the temporary electricians as their employees. However, this evidence is quite self-serving as is the case with the evidence given by the individual temporary electricians regarding who they viewed to be their employer. Accordingly, it is of little assistance to the Board in the determination we are called upon to make.

20. The Department of Public Works does not issue tools and uniforms to the temporary electricians. Although this could be interpreted as evidence of an intention to not treat the temporary electricians as employees, it could also be evidence of the fact that budgets have been shrinking and it is expensive to supply tools and uniforms to individuals whose employment may be somewhat transitory in nature.

21. In assessing who exercises fundamental control over the temporary electricians, on the facts of this case, we must conclude that this control does not lie with Dare and P.F. Inc. It is the Department of Public Works who determines: if a temporary electrician will work, and thereby will have the opportunity to earn wages; where that work shall be; how long that work will last; how the work is to be performed; and under what conditions it shall be performed. While Dare and P.F. Inc. perform a screening and referral service and a payroll service they are not involved in any aspects of the work performed by the electricians which would indicate fundamental control over them once they are referred to the Department of Public Works. As was noted earlier, the issue of fundamental control is the key to the determination before us and the one upon which most reliance is placed. While the temporary electricians may have viewed the personnel agencies as their employer, this factor when balanced against the lack of intent to create an employment relationship on the part of Dare and P.F. Inc. becomes of less assistance to the Board in the determination before us.

22. There appear to be two cases in which the Board has dealt with the question of who is the employer in the context of a personnel agency where the Board concluded that the employer was the agency. (There are numerous cases in which the opposite conclusion was reached). One of these cases, The Tower Company (1961) Limited, [1979] OLRB Rep. 583, was referred to us by counsel for the applicant. The other decision is Templet Services, [1974] OLRB Rep. Sept. 606. Templet is distinguishable from the case before us as in that case the agency had the authority to discipline and had input in to the day to day supervision of the employees in question. The Board in Templet therefore concluded that the overriding control of the work performed resided with the agency. This is not the situation in the case before us.

23. While The Tower Company case bears more similarity to the case before us, nevertheless there are differences. In that case the Board relied heavily on the fact that the agency "hired" the workers. In the case before us this factor is neutral. The Board in Tower also appears to have given significantly more weight to the "form" of the relationship between the agency and its client and relied on the fact that the agency was named as the employer in the commercial contract. As already noted, in recent cases, the Board has not placed as much reliance on the form of the legal or commercial contract in place in assessing who is an employer and, in our view, this is the more appropriate approach to take.

24. Therefore, on the facts of this case and in light of the Board's jurisprudence it is our conclusion that Dare and P.F. Inc. are not the employers of the individuals for whom the union seeks bargaining rights.

25. Counsel for the applicant referred the Board to two cases P. S.A. C. v. Canada (AG), 1991 CanLII 88 (SCC), [1991] 1 S.C.R. 614 (Econosult) and Canada (AG) v. Gaboriault, [1992] 92 CLLC ¶14,057 (Fed. C.A.) in support of an argument that the Board does not have the jurisdiction to find that the temporary electricians are employees of the Federal Government. In counsel's view, if the Board finds that the temporary electricians are not employees of Dare and P.F. Inc. we are by default saying they must be Federal Civil Servants.

26. We do not dispute counsel's assertion that it is not within the Board's jurisdiction to determine who is or is not an employee of the Federal Government. Even if this was not the case it would not be appropriate for us to focus on this issue as the Federal Government was not named as a responding party in this certification application and did not appear before us. It would not be appropriate for us to conclude that an entity, which is not a party to these proceedings, was the employer of the temporary electricians. In any event, as was noted at the outset of this decision, the question before us is whether Dare and P.F. Inc. are the employers of the temporary electricians. Having concluded that they are not, we can go no further.

27. As a supplement to the above argument, counsel for the union took the position that the Board should keep the purposes of the Act, in particular section 2.1 in mind when deciding this case. Section 2.1(1) provides:

The following are the purposes of the Act:

1. To ensure that workers can freely exercise the right to organize by protecting the right of employees to choose, join and be represented by a trade union of their choice and to participate in the lawful activities of the trade union.

Counsel argued that if the Board concludes that the personnel agencies are not the employer of the temporary electricians these individuals will be denied union representation. In counsel's view, unless the temporary electricians are public servants, they cannot be employees of the Federal Government. (See Econosult, supra). Or as it was put in Gaboriault, supra, "a person cannot be an employee of the Federal Government without an express appointment or formal hiring duly authorized by law".

28. While we would agree that the purposes of the Act are never to be ignored, on the facts of this case, it would be unreasonable to conclude that the agencies, given their limited role, are the employer of the individuals in question. We must make our decision on the facts before us with a view to the existing jurisprudence. We cannot find an employer/employee relationship between Dare and P.F. Inc. and the temporary electricians that does not exist.

29. For all of the above reasons the two applications for certification are dismissed.

30. The applicant is directed to contact the Registrar within ten days of the receipt of this decision to advise as to what steps it would like to see taken regarding the two unfair labour practice complaints. Given the evidence already heard by this panel of the Board, it is appropriate for us to remain seized of these matters.

DECISION OF BOARD MEMBER R. R. MONTAGUE; July 4, 1995

1. I dissent. With respect, the "who is the employer" jurisprudence simply does not apply to the case before us. In all of those cases, the issue was one of determining which of two or more parties is or are the employer(s) of certain employees. Here, since the company alleged to be the employer was not made a party to these proceedings, this caselaw is inapplicable. In any event, while at first blush the Department of Public Works may appear superficially to be the employer, the Board must look beyond the form and appearance of the relationships involved to their realities. Based on all the circumstances, I am of the firm view that Dare Personnel Inc. and Personnel Force Inc. are the employers of the workers in question.

2. The "who is the employer" cases represent an interesting and perhaps inevitable phenomenon which has confronted the Board in applying the Labour Relations Act. Since the Act is limited to regulating relations between employers and trade unions, in order to be certified as a bargaining agent, it is incumbent upon a trade union to demonstrate that the employees whom it seeks to represent are in fact employees of the respondent employer. While in most cases this is a relatively straightforward question, in many others, the question is more complicated. For the most part, in these cases, the difficulty in identifying the employer arises from complex corporate organizations, subcontracting, and the use of temporary personnel companies.

3. In addition to the difficulties presented by complex corporate structures, the Board has found in a not inconsiderable number of cases that the "who is the employer" cases represent a sort of jockeying among companies, all of whom claim that they are not the actual employer of the employees in question but rather that some other entity is. These cases are perhaps inevitable given that the purposes of the Act are, inter alia, to encourage the process of collective bargaining so as to enhance the ability of employees to collectively negotiate terms and conditions of employment with their employer and to increase employee participation in the workplace and given the elementary fact which the Board can take judicial notice of that collective bargaining has generally had the effect of improving employees' working conditions and terms of employment. However, the fact that collective bargaining may assist employees in improving their terms of employment, of course, cannot influence the Board's application of the Act nor can it justify in law an employer's avoidance of its application (K-Mart Canada Ltd., [1983] OLRB Rep. May 649 at 664, Westinghouse Canada, [1980] OLRB Rep. Apr. 577 at 607-608; Nichirin Inc., [1991] OLRB Rep. Jan. 78 at 80). This, then, is the context within which the "who is the employer" jurisprudence has taken shape.

4. In the "who is the employer" caselaw, the Board has enumerated and applied certain factors which are to be used in determining which of two or more parties is or are the employer(s) of certain employees. Here, given that the other entity which the respondent alleges to We the employer is not a respondent to the action and has not been given notice thereof, the whole of the "who is the employer" jurisprudence referred to by my colleagues is inapplicable. In other words, if there is not in fact "two or more parties", the Board cannot determine which of two or more parties is or are the employer(s) of certain employees.

5. That said, however, certain cases have not taken this approach and it is therefore necessary to assess the case before us in light of the traditional factors. The personnel company cases have generally involved employers who have attempted to avoid being characterized as the employer by claiming that a temporary agency was the employer. In contrast, in the case at bar, it is the temporary agency (and not the company) which is trying to avoid being identified as the employer. There is no suggestion that the other entity, which is not a respondent to this action, has behaved in a way so as to avoid its obligations under the Act. This is not to say that anti-union animus is a necessary ingredient in finding that a respondent was the employer. In fact, it clearly is not. The point is merely to emphasize the context in which the question of "who is the employer" has arisen in past cases involving temporary personnel companies.

6. The applications for certification at issue in this case were brought together with complaints by the union under section 91, alleging violations of sections 65, 67, and 71. Section 65 deals with employer interference in unions, section 67 deals with employer interference with employees' rights, and section 71 deals with intimidation and coercion. On consent of the parties, it was agreed to adjourn the hearing of the section 91 complaints pending the outcome of these applications for certification.

7. In all of the circumstances, I cannot accept the finding of the majority that the immediate supervision exercised by the Department of Public Works necessitates a finding that Public Works is the employer. As the Board said in The Tower Company (1961) Ltd., [1979] OLRB Rep. Jun. 583 at 584:

"The party exercising day to day control and supervision over employees is certainly a factor to be considered in determining who is the true employer. However it is only one factor among many which must be taken into account".

See also K-Mart, supra, at 662-663, Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538 at 1545-1546 and 1552, Kennedy Lodge Inc., [1984] OLRB Rep. July 931 at 957, and Theatrecorp Ltd., [1992] OLRB Rep. Mar. 388 at 399, which have held generally that no particular order of priority should be attributed to the factors and that the weight to be assigned to each depends on the circumstances of each case.

8. In The Tower Company, supra, an application for certification filed pursuant to the construction industry provisions of the Act, the Respondent (The Tower Company (1961) Ltd. and Burjan Construction Company Ltd. Joint Venture) contracted to supply certain maintenance services to the Federal Department of Transport. The employees at issue were interviewed, hired, and paid by the respondent. However, the respondent did not have an on-site supervisor and the Department of Transport supervised the employees and kept a record of the hours they worked. The contract provided the Department of Transport with the authority to have any of the employees removed upon request. In addition to arguing that the Department of Transport was the employer, the respondent Agency argued that the employees fell within federal jurisdiction and that the Board was therefore without authority to deal with the matter. The Department of Transport was not a party to the action. In finding that the respondent was the employer, the Board ruled as follows:

"The party exercising day to day control and supervision over employees is certainly a factor to be considered in determining who is the true employer. However, it is only one factor among many which must be taken into account. See York Condominium Corporation, Number 46 and/or Medhurst Hogg and Associates Limited, [1977] OLRB Rep. Oct. 645. In the instant case, in that the respondent hired the employees and pays them and is also recognized by the contract between the respondent and the Department as their employer, we are satisfied that the respondent and not the Federal Government is their true employer, and that accordingly the Board does have jurisdiction to entertain this application".

9. Similarly, in the case before us, Dare and P.F. Inc. hired the employees in question, paid them, and made the necessary statutory deductions from their paycheques, told them where: when and what time to report to work. Dare and P.F. Inc. are responsible for providing Workers Compensation coverage to the temporary electricians and pay the necessary Workers' Compensation assessments. Dare and P.F. Inc. are also the entities which issue time cards, records of employment and T-4 slips. Dare and P.F. have sole responsibility for setting the wage rate of the employees. Further, the employees' contracts of employment with the respondents and the standing offer with the Department of Public Works recognize the respondents as the employers. The factor of imposition of discipline is of little assistance in resolving this matter since there was no evidence that any disciplinary action has been taken against any of the employees in question by either Public Works or the agencies. The employees called as witnesses perceived themselves to be employees of either Dare or P.F. Inc.

10. Many of the "who is the employer" cases that have come before the Board have involved complex pay arrangements which have tended to obscure the true identity of the employer. The Board has therefore adopted certain rules of thumb to help "cut through" to the reality underlying such arrangements. Thus, for instance, the entity that is superficially responsible for paying employees is not considered the employer if it is not in fact the party that bears ultimate responsibility for remuneration — namely, where payments are back-charged to another entity (K-Mart, supra, at 663, Grant Development Corporation, [1993] OLRB Rep. Jan. 21 at 29. Similarly, private arrangements as to who is the employer are not determinative; rather, the Board looks through the form and appearance of the relationships to their realities (K Mart, supra, Thunderhawk Developments, [1983] OLRB Rep. Aug. 1378 at 1383).

11. That said, however, the complex arrangements that sometimes develop should not cause the Board to drift from the simple and usual proposition that the fact that one party is ultimately responsible for paying employees and making their statutory deductions is generally a strong indication that it is the employer (Beer Precast Concrete Ltd., [1970] OLRB Rep. May 224 at 228-229). In the case before us, the temporary placement companies are the ones that pay the employees and make statutory deductions from their paycheques and in the absence of evidence of "back-charging" arrangements or other indications that Public Works Canada is actually responsible for paying the employees, we have to accept this fact as highly indicative of who is the employer.

12. My colleagues have argued that a temporary placement agency is similar to a hiring hall and thus cannot be an employer, in my humble opinion a real stretch of ones imagination. However, neither Dare Personnel nor Personnel Force operate like a hiring hall. The employees were not just referred, but were interviewed and had their qualifications assessed by the respondents in order to determine whether the applicants would be hired. In this respect, the personnel company acted as does any other potential employer — it required potential employees to fill out employment applications, submit the required documentation (such as work accreditations, references, and photocopies of their Social Insurance Number Cards) and, as previously mentioned, interviewed, checked references, and hired.

13. The company to whom the employees were referred had no role in "hiring" the employees referred other than to engage in a cursory examination of their accreditation to ensure that they were qualified of doing the work in the most threshold way. Those referred were not given an interview nor were they required to fill out applications for employment. Those referred were invariably put to work, although, as with any personnel company, an unsatisfactory employee may occasionally have to be removed by the company to which the employee was referred. Given the number of personnel company cases that the Board has dealt with over the years, it is quite legitimate to take judicial notice of the fact that this is the manner in which all personnel companies operate: namely, the company the employees are referred to can essentially have the employees removed upon demand. Nonetheless, in appropriate situations, the Board has not had a problem in finding that such companies are properly characterized as employers.

14. The majority's assertion that a temporary help agency is a "hiring hall", which merely engages in threshold determinations as to whether a worker has the bare threshold qualifications required to perform the job is somewhat disconcerting. Hiring halls are a phenomenon peculiar to the construction industry through which trade unions refer potential employees to job sites. This procedure is necessary in a craft-based collective bargaining system, in which the only real qualification of employment to a union company is that the employee in question be accredited, duly-recognized as a union member, and warrant being placed in the job over other out-of-work union members. As well, hiring halls have proven necessary because construction industry jobs tend to be fleeting and of short duration. The hiring hall is the place where members register to indicate that they are without work at the present time. As the Board stated in Theatrecorp Ltd., supra, at 388:

"Hiring halls in an industry organized along craft lines can't be compared to and should not be equated with mere temporary employment agencies

15. The main problem I foresee with the majority decision is that, by likening personnel companies to hiring halls, it may preclude a finding that personnel companies could be employers in any circumstances. Such a finding would be inconsistent with previous decisions of the Board which have found personnel companies to be employers within the meaning of the Act (See, for e.g., Templet Services, [1974] OLRB Rep. Sept. 606). As well, there are numerous cases in which the Board has considered, based on the facts, whether the personnel company in question is the employer (See, for e.g., K-Mart, supra, Ralston Purina Canada Inc., [1979] OLRB Rep. Jun. 552, Welland County Roman Catholic Separate School Board, [1972] OLRB Rep. Oct. 884, Nichirin, supra, Sylvania Lighting Services, [1985] OLRB Rep. July 1173).

16. It bears noting that personnel companies are in fact businesses. Their primary function is to reduce the time-consuming and expensive work companies in need of temporary employees would ordinarily have to shoulder in screening, assessing, hiring, and paying applicants. Indeed, this is the service that these companies are in the business of providing. It is here that they exercise their entrepreneurial initiative and particular expertise. Of course, the fee charged covers the salaries of employees referred. If it did not, the companies would not be in business, but would be charitable organizations. This fee can in no way be seen as a back-charging arrangement since the personnel agencies are separate corporations and not merely arms of the companies in question.

17. Given its mandate, the Board must be vigilant against the potential erosion of rights guaranteed under the Act that may be caused by new forms of corporate organization and contracting-out to other corporations (Grant Development, supra, at 27). I therefore feel that the majority has committed a fundamental error in finding that temporary personnel companies, such as those before us in this application, do not constitute employers within the meaning of the Act.

18. For all the foregoing reasons, I would have found that Dare Personnel Inc. and Personnel Force Inc. are the employers of the employees in question. Thus, the Board has jurisdiction to deal with these applications for certification and should proceed to hear the unfair labour practice complaints involving the same parties.