[1998] OLRB REP. SEPTEMBER/OCTOBER 801
0827-98-R Ontario Public Service Employees Union, Applicant v. Huntsville District Memorial Hospital (Algonquin Health Services), Responding Party
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: Richard Blair, Eileen Wesley, Diane Krbavcic, Bonnie Hemmings, Mildred Hunter and Pat Honsberger for the applicant; Chris White, Karen Wright, Vaughn Adamson, Pam Millar, Tracy Badger and Daniel Bloch for the responding party.
DECISION OF THE BOARD; September 9, 1998
The style of cause is hereby amended to reflect the correct name of the responding party: "Huntsville District Memorial Hospital (Algonquin Health Services)".
This is an application for certification filed on May 29, 1998. A vote was held on June 5, 1998. At the vote the parties reached agreement on the bargaining unit description which is as follows:
all homecare workers of Huntsville District Memorial Hospital in the District Municipality of Muskoka and in East Parry Sound, save and except supervisors, persons above the rank of supervisor, Homemaking Coordinator, PCS Coordinators, Case Managers, therapists, office and clerical.
The only outstanding issue is one raised by the responding party which takes the position that all of the persons (the homecare workers) the applicant (the "union" or "OPSEU") is seeking to represent in this bargaining unit are independent contractors, so that there are no employees in the bargaining unit.
At the outset of the hearing the parties agreed that the following persons are no longer in dispute and that they are not persons in the bargaining unit: Glady Brown, Janet Ehl, Nancy Hammond, Sally Harper, and Maria Russell. The parties had also prepared an agreed statement of facts which they relied upon in the course of making their submissions. In reaching a decision in this matter I have relied upon the agreed statement of facts, submissions made by counsel, and the documents which the parties agreed are before the Board.
The Huntsville District Memorial Hospital (Algonquin Health Services)("the hospital") is a full service public hospital located in Huntsville. For many years the hospital operated a home health care program under the name "Muskoka-East Parry Sound Home Care Program" (the "Home Care Program"). This Home Care Program provided a range of services to clients in their homes including nursing services provided by registered nurses and registered practical nurses, therapy services provided by occupational therapists, physiotherapists, and speech language pathologists, and homemaking services through homemakers. The individuals the union is seeking to represent in this application are the homemakers. Since the parties appear to use the terms "homecare workers" and "homemakers" interchangeably, this decision will do the same. Many of these service providers were subject to a contract purporting to be an agreement for service. The Home Care Program itself was administered by employees including case managers, coordinators of the various services, clerical and administrative staff, and senior management.
Since 1973 the hospital has entered into individual standard form contracts for services with various service providers. In 1986 a Home Care Program contract with one of the registered nurses providing the Program with services was the subject of a ruling by the Tax Court of Canada. That Court ruled that the registered nurse was an independent contractor for purposes of the Income Tax Act. The Home Care Program thereafter amended the form of its contracts, and continued to use them for service providers like the homemakers.
Mound January 1996 the Minister of Health announced a new model for the provision and coordination of long-term care community services through the formation of 43 Community Care Access Centres ("CCAC's") in Ontario. The CCAC's are incorporated as not-for-profit organizations governed by independent boards of directors and are responsible for a particular catchment area. They will henceforth be responsible for providing information and referral regarding long term care services; coordinating service planning, budgeting, tendering and monitoring of service contracts for delivery of in-home services; case management and eligibility determination; and, the provision of placement coordination services for long-term care facilities like nursing homes and homes for the aged. CCAC's took over from the host of community organizations which had provided aspects of all of these services to their respective communities. The Ministry of Health determined that the CCAC's would be responsible for the arrangement of nursing care, professional therapies, social work, dietetic services, homemaking, personal support and respite care through the use of service providers who would not be employees of the CCAC, but whose services would be purchased from both non-profit and commercial service providers. Service providers would have to bid on work through a structured "Request for Proposal" bidding process which would be overseen by the CCAC. The government provided guidelines for the Request for Proposal process. A transition period of three years was allowed to permit non-profit and commercial service providers to become fully competitive in the proposed bidding process.
The CCAC created to serve the Huntsville area is the Muskoka - East Parry Sound Community Care Access Centre of the Huntsville District Memorial Hospital ("MEPS") and is a successor of the Muskoka - East Parry Sound Home Care Program. It was established in May 1997, and by April 1, 1999 is envisioned as being the sole broker for long-term care services in its area. It is unclear to the Board why, if the transition period was supposed to take three years, and the MEPS was established in May 1997, there will be completion of the phase-in in less than two years, by April 1, 1999. Nonetheless, that appears to be the situation before me. The government provided MEPS with guidelines in connection with the transition period for the phase-in of the use of the bidding process for all services which CCACs would provide to clients. Subsequent to the creation of MEPS the forms of contract utilized by the Home Care Program were amended to reflect MEPS as the party to all contracts including those with the homemakers in question in this application.
During the official three year phase-in period the government is offering a form of protection to the previous service providers through the concept of "protected volume". Pursuant to this concept, a service provider, whether an individual or an agency, receives a specified but declining percentage of the volume of work they had historically received from the predecessor organization now encompassed by the CCAC. The historic volume was determined by looking at the hours of service that service provider had been paid for in the fiscal year 1995-96. By the end of the three year period, which appears to have technically begun in 1996, the service provider would no longer have any protected volume and would have to decide whether to bid in the Request for Proposal process. The transition period is envisaged as a time in which service providers can make themselves competitive. During the three year transition, the service provider is also free to participate in the Request for Proposal process to bid for work in excess of the protected volume or for the percentage of work which is unprotected. That work however can only be allocated to successful bidders.
In the case of MEPS, for the 1998-99 fiscal year and the last year of the transition period, 70% volume protection was provided to homemakers who had previously provided services to the Home Care Program. Organizations, like the Red Cross, which had also provided the Home Care Program with homemaking services were provided with the same 70% volume protection. Homemakers who have a protected volume are not obliged to utilize all of that volume, but are entitled to rely on the volume absent a termination of the contract for cause, or notice to the CCAC that they no longer wish to provide the services. Although there is a so-called protected volume for the service providers in transition, that is not a guarantee of work. Rather, in the event that the total amount of services required drops, the protected volumes of service providers would be reduced proportionally. If the need for services increases however, there would be no proportional increase - the extra work would be allocated to a successful bidder after the CCAC has been through a tendering process for this new unprotected volume. MEPS has held two calls for Requests for Proposals for homemaking services since the transition began, however no individual homemaker has filed a proposal in either tendering process. As of April 1, 1999 all contracts will be awarded through the Request for Proposal process.
Pursuant to the government guidelines for this privatization of services there is a difference in the way in which employees of an agency which has become a part of a CCAC are treated as compared to how contract service providers to that same agency are treated. Employees who choose to leave their employment with a CCAC before August 31, 1998 will receive 90% protected volume until the year 2001. Employees who continue to work for the CCAC will be able to work at 100% of capacity until they choose to leave or until divestment occurs at the end of the transition period. As outlined earlier, contract service providers receive a diminishing percentage of protected volume for up to three years. In this case the MEPS homemakers have been treated as contract service providers, they are currently in the final year of protected volume, and they have therefore only been receiving 70% of their original work load as a protected volume.
A homemaker's work comes about in the following fashion. When a new client applies or is referred and accepted by MEPS, a case manager visits the home of the client and does an assessment of needs. A care plan is then developed for the client setting out the types and frequency of nursing care, therapy, and homemaking services. After the care plan has been approved each coordinator deals with his or her own area of service. Thus, if there is a homemaking component to the care plan, then the Homemaking Coordinator begins the process of contacting the homemakers utilized by MEPS to arrange for the provision of services to the client. The coordinator would take into consideration the geographic proximity of the homemakers to the client, the types of services required by the client relative to any preferences as to type of service expressed by the homemakers, the time and location of services currently being performed by the homemaker relative to the requirements of the client, the scheduling wishes of the homemaker, and the concept of protected volume for the homemakers. Homemakers can and do express preferences to the coordinator, and to the extent possible the coordinator attempts to respect those wishes. The coordinator will attempt to provide each homemaker with the opportunity to meet that individual's level of protected volume without exceeding the annual allocation.
Once a homemaker accepts a client the coordinator places the times at which homemaking services are to be provided on a schedule consistent with the established care plan for that client. While that schedule represents an expectation of when services will be provided, the individual homemaker has the ability to make changes in the schedule. If the homemaker wishes to change the time at which the services will be provided, she can deal directly with the client to make the arrangements, and must then inform the coordinator of the changed schedule so that the new time can be noted on the coordinator's schedule. Sometimes the homemakers will inform the coordinator of the changed time after the service has already been provided. The homemakers at MEPS provide a variety of services in clients' homes. Those services are designed to support the client on either a long- or short-term basis through the provision of respite care, some aspects of personal care and grooming, meal preparation, cleaning, sewing, laundry, etc.
One homemaker on the protected volume list at MEPS has declined clients because she has other commitments. While she has therefore not been exercising her right to her full protected volume, that individual has asked that she continue to be offered opportunities. Protected volumes are also transferable should a homemaker wish to take her protected volume to an agency which provides homemaking services. Thus the five individuals mentioned in paragraph 3 above, who have been removed from the list of potential employees, are persons who have taken their respective protected volumes to an agency, Integrity Plus. Once the individual homemakers signed letters indicating they wished to transfer their respective protected volumes, Integrity Plus became the provider of homemaking services to MEPS by virtue of that protected volume and MEPS no longer had any relationship with the five women in question. It was made clear to the individuals before the transfer was made that MEPS would have no continuing responsibility to ensure that the individual homemaker would get any of the hours from her protected volume once she was with Integrity Plus. Furthermore, if MEPS determined that Integrity Plus was unable to meet the required standards and therefore terminated the contract with that agency, the individual homemaker would not be able to get back her protected volume with MEPS. The transfer of protected volume is irreversible. Agencies are paid a different rate than are the individual homemakers.
Homemakers who had been working with the previous Home Care Program were advised before they started that they would be expected to provide services on weekends as the organization provides services seven day a week. Thus a homemaker who is responsible for the provision of homemaking services to a client is responsible to provide those services whether it is on a weekend or not. Nonetheless, MEPS (and the Home Care Program before it) and the homemakers have reached a different arrangement such that weekend scheduling is accomplished by means of an alphabetical list in various geographical areas and a rotational system of scheduling. Two homemakers have refused to work on weekends so they are not included in the weekend scheduling rotation.
For the most part communication between the homemakers and MEPS is accomplished by telephone, although a copy of the written information provided to the coordinator from a case manager regarding a client is provided to the homemaker. The coordinator has each homemaker's home telephone number, and each homemaker has a voice mail box at MEPS. There is apparently little need for any homemaker to ever attend at the MEPS office as the homemaker's invoices can be mailed in to the office. Since 1997 homemakers are required to pay a nominal $10.00 annual fee for the use of their voice mail boxes and any office supplies, photocopying, etc. that might be required. Incident Reports differentiate between clients, staff, and providers, and staff of the hospital must complete more forms than either clients or service providers.
New homemakers are provided with a "Homemaker Handbook" which is a guide book regarding expectations and is a source of reference. They are also required to purchase name tags, and to comply with "Dress Guidelines", but are not required to wear uniforms. MEPS does not provide vehicles or equipment used in the performance of homemaking services. Homemakers own and insure their own vehicles, but are provided kilometrage pursuant to their contracts. Cleaning supplies, food and any equipment required in domestic functions are provided by clients for the use of the homemakers. If requested, MEPS will provide a homemaker with latex gloves. Special equipment required for personal care, e.g. a commode, is provided by MEPS directly to the client and remains in the client's home while needed.
In the course of performing required on-going assessments of clients' needs case managers and homemaking coordinators monitor the quality of care provided by homemakers. If in the course of a client assessment it is noted that the homemaker is not meeting the standards of services required of her, then a review of that homemaker may be triggered. A review may also be triggered by a client complaint. If, as a result of that review, it is determined that the homemaker's services are deficient, the contract may be terminated. There is no formal discipline process utilized by MEPS. As part of the MEPS contract management process an assessment is also performed on each homemaker at least biannually and generally annually. Agencies like the Red Cross, which are also homemaker service providers, are also assessed in the same manner. Management visits client homes with the homemaker and conducts an assessment which includes a review of the accomplishment of clerical tasks, how tasks in a home are completed, how available the homemaker is for assignments, the relationships with the client and his/her family, attendance at homemaker meetings, maintenance of confidentiality, observation of problem areas in a client's well-being, etc.
New homemakers are provided with orientation by accompanying an experienced homemaker on a visit with a client. MEPS also provides WHMIS training to all homemakers and agencies which have contracts with it, and offers voluntary access to other training in such areas as palliative care, basic body mechanics, and acquired brain injury.
The vast majority of the homemakers OPSEU is seeking to represent also work for other agencies which provide homemaking services e.g. the Red Cross, Friends, Integrity Plus, and may have private clients. The "Contract for the Provision of Services", signed annually by each homemaker, indicates that the homemakers are providing their services to MEPS "on a non-exclusive basis as an independent contractor", so that they are free to work for any other individual or agency. The contract outlines the terms under which work will be provided: thus, it states that the contract is for April 1, 1998 to March 31, 1999; the hourly rate to be paid; the rate for travel on a per kilometer and per visit basis; that invoices must be submitted and approved; that the individual service provider is responsible for his/her own statutory remittances; and, that there is no entitlement to any employment benefits which the hospital's own employees enjoy. Contracts are signed and dated by both a representative for MEPS and by the service provider. Pursuant to the contract the homemakers are expected to comply with the MEPS "Standards for Provision of Homemaking Services". All of the homemakers sign exactly the same kind of contract, and are paid the same hourly and kilometrage rates. The hospital's liability insurance provides umbrella coverage for all services of the hospital, including MEPS and the service providers it contracts with to provide services to clients.
Homemakers invoice MEPS twice a month, and are paid on the 1st and 15th of each month. The invoices are in a standard form and include a time report indicating which client was visited on what days, travel time to a client's home, and the number of kilometers traveled. Homemakers must also complete a form indicating the type of services they provided to each client visited. If a homemaker is going to be unavailable for whatever reason, s/he must call in to the Homemaking Coordinator at the MEPS office and indicate when and for how long. It appears that homemakers can find their own substitutes from among the other homemakers, can switch shifts with another homemaker, or may simply indicate their unavailability to the coordinator. In the latter case the coordinator must then arrange for a substitute to provide the services to the client. The coordinator must also be aware of a switch made between homemakers as it may effect the respective protected volumes of the homemakers involved. The half-monthly schedules are changed repeatedly to accommodate the various needs of clients and the availability of the homemakers.
The Request for Proposal guidelines indicate that there is a rigorous pre-qualification process, followed by an actual proposal process for those chosen after having qualified. Although the hospital argued that individuals could apply, a brief review of the Ministry of Health's guidelines for what CCAC's must consider in the Request for Proposal process suggests that there may be an expectation that it will be agencies or organizations which will be expected to be successful. There appears to be an expectation that the service provider will have staff, that that staff will be trained on a myriad of matters, and there will be standards and ethics articulated for staff to follow. The service provider must have a professional approach to human resources and financial management, must have in place policies and procedures for staff recruitment, staff orientation, ongoing training, and evaluation. Further, the service provider must produce an annual report or financial statement to account for both public and private business. There must be a mission statement, long-term plan, operational policies and procedures, a formal risk management program, and so on. It hardly seems surprising that no individual homemakers have applied to pre-qualify for participation in the Request for Proposal process.
ARGUMENTS
The employer argues that the homemakers are independent contractors and therefore not employees within the meaning of the Act. It argues that the homemakers work for MEPS pursuant to a contract for services, they are charged for supplies and a voice-mail box, have to invoice MEPS after services have been provided, are not entitled to any employee benefits, do not have any statutory deductions made from their payments, and they have a non-exclusive relationship with MEPS so that they can also work anywhere else they wish to. The employer states that MEPS, and its predecessor the Home Care Program, have treated these homemakers as independent contractors since 1972, and that the Tax Court has recognized them as such. The employer suggests that the homemakers work on average one third of the hours of a full-time worker. It is argued that as a result they are not economically dependent on this employer because they would not be making the largest proportion of their income from this source. Further, the contract stipulates that it is non-exclusive, and the evidence indicates that the majority of homemakers also work for other agencies or private clients.
Furthermore, the employer argues, the homemakers can refuse assignments, can indicate they do not wish to work on weekends, can make arrangements with the clients to change the time at which work is to be performed, and can exchange work with other homemakers if they want to. The Homemaking Coordinator schedules the homemakers in accordance with their availability, and will find a replacement if a homemaker calls in to say s/he cannot work. There is no obligation to perform work. Finally, homemakers can take their protected volume of work to another agency if they wish to.
The union argues that the homemakers are in an employee-like relationship with MEPS, albeit in a part-time employment type of situation. However, OPSEU argues that the fact that these persons do not work full-time hours for this agency should not be a barrier to their access to collective bargaining. In an era of rising part-time employment the union argues it is important to protect the right to representation for those workers who are increasingly dependent on part-time and casual work from more than one source. It states that as there is economic dependence in all employment relations, and a requirement to perform duties, the Board must look further to see if the relationship of economic dependence more closely resembles that of an independent contractor, or of an employee.
According to OPSEU, the CCACs are government-funded brokers for long-term care. As such the CCAC staff determine the level of care a patient or client requires, the hours of care, the needs of the client, and they make up the care plan without any input from the homemaker. All the homemakers are paid at the same hourly rate, not on a per visit basis, so that there is no opportunity for the homemaker to make a profit. Further, there is no negotiation of the hourly rate or of the kilometrage rate with the homemakers. While the homemakers have the option of finding a substitute to perform their work, MEPS controls the group from which substitutes may be chosen. Further, no matter who does the work, MEPS pays that person directly, again giving a homemaker who needs a substitute no opportunity for profit or loss. Since MEPS collects any fees owed for services rendered, the homemakers bear no risk for the collection of funds. The union characterizes the $10 annual fee as a nominal formality which has no justification and should therefore be seen as being of no significance.
OPSEU argues that the standards set by MEPS for homemaking services must be adhered to by the homemakers, and that the contractual relationship between MEPS and the homemaker can be terminated for cause just like employee relations. The homemakers are subject to evaluations, just like employees, and the union notes that the forms used for evaluations by MEPS are very much like those which one might expect to encounter in an employee/employer relationship. The union urges the Board to find that the Homemakers Handbook is like an employee manual because of its detail. It tells the homemakers to do their jobs in a particular fashion. OPSEU argues that the relationship between the homemakers and MEPS is not entrepreneurial, but more like that of an employee.
DECISION
- The definitions of "dependent contractor" and "employee" contained in section 1(1) of the Act are as follows:
"dependent contractor" means a person, whether or not employed under a contract of employment, and whether or not furnishing tools, vehicles, equipment, machinery, material, or any other thing owned by the dependent contractor, who performs work or services for another person for compensation or reward on such terms and conditions that the dependent contractor is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor;
"employee" includes a dependent contractor;
In cases in which there is an issue of whether a person is a dependent contractor the Board considers the type of economic dependence and the kind of business relationship existing between the person and the alleged employer. Based on a factual analysis in each case, the Board looks at whether the relationship more closely resembles the relationship of an employee than that of an independent contractor. (See Superior Sand, Gravel & Supplies Ltd., [1978] OLRB Rep. February 119, at paragraph 20.)
In Algonquin Tavern, [1981] OLRB Rep. August 1057, the Board set out a number of factors which, alone or in combination, have been considered in assessing dependent contractor status. In reaching a decision I have considered each of these factors in the context of the facts of this case.
Use of Substitutes: The Board has found that it is inconsistent with an employment relationship if the alleged employee can, at their own discretion, fulfil the bargain to perform work through the efforts of a substitute. The homemakers contracted to MEPS do have the right to arrange for someone else to perform their work, however, they can only make substitution arrangements with other homemakers who have a recognized relationship with MEPS. Furthermore, in such cases the person performing the work is paid directly by MEPS. Homemakers can also advise the Homemaking Coordinator that they simply cannot do the work, in which case the coordinator must arrange for someone to fill the schedule. I find that the ability to use substitutes in this case is circumscribed as the only persons with whom the homemaker can exchange a shift or ask to substitute is another homemaker contracted to MEPS. This is more akin to a part-time employee situation in which such employees try to exchange shifts with their co-workers, and in the event that they cannot do so, it is up to their employer to fill the vacancy in the schedule.
Ownership of tools: Homemakers do not require any tools, equipment or supplies of their own to perform their work as they use the equipment and supplies which their clients have on hand in their homes. If a homemaker wants latex gloves, MEPS will supply them. Homemakers are required to have their own vehicles to get to and from their clients' residences. They must also carry their own automobile insurance. However, homemakers are paid kilometrage to compensate for their travel expenses. The ownership of tools appears not to be a significant factor as the homemakers are providing their services to clients, and do not have much need for personalized tools. While the need for a vehicle may be considered a significant matter, the fact that MEPS pays the homemakers a kilometrage rate for their travel makes them seem similar to any employee who has to travel in the course of employment, is required to have an automobile, and is paid mileage.
Evidence of entrepreneurial activity: There is no evidence before me that the homemakers engage in self-promotion through advertising, the use of business cards, or any other means. In the course of working for MEPS the homemakers have very little opportunity to have a "chance of profit" or "risk of loss" since they are paid an hourly rate for all work performed and receive compensation for their specific travel to and from the homes of clients. Furthermore, in cases in which a homemaker needs to use a substitute, the substitute is paid directly by MEPS. Thus the individual homemaker has no opportunity to make any money off someone else's work, but nor does she or he have to pay a higher price in order to accommodate the need for the time off. MEPS bills and collects from the clients directly, so homemakers incur no risk that a client will not pay after the work has been performed. I cannot find any evidence of entrepreneurial activity on the part of the homemakers.
Selling one's services to the market generally: Since the contract signed by the homemakers with MEPS is non-exclusive, the homemakers are free to perform work for anyone else interested in engaging their services. Thus most of the homemakers do work for other agencies or for private clients. However, there is no evidence to suggest that homemakers are turning down work from MEPS in order to work elsewhere. The reality is that the homemakers are only being provided with hours of work from MEPS amounting to about one third of a full-time equivalent. While one third of a full-time equivalent is not insubstantial, it does not require so significant a commitment to MEPS that if they wish to earn about as much as a full-time job would pay, homemakers cannot work at other jobs. Therefore, while the homemakers are capable of selling their services to the market generally, they are in a position similar to many part-time employees in the current economy who must work at a variety of jobs in order to earn the equivalent of a full-time job. It is a labour relations reality that due to the exigencies of the market, workers' commitment to part-time work has increased.
Economic mobility or independence, including the freedom to reject job opportunities, or work when and where one wishes: The homemakers have some independence in deciding when they will be available to work. They can indicate to MEPS that they are not available for any work for some period of time; they can advise MEPS that even though they are not presently available they would like to be offered work in case at any time they do become available; the homemakers tend to work in the geographic area of their choice and can indicate to MEPS what work they would prefer to do or not do; and, in limited numbers they can indicate they do not want to work on weekends even though the MEPS services are offered seven days a week. It appears that the Homemaking Coordinator attempts to provide work opportunities to meet the varying preferences of the homemakers. While it may appear that this is one area in which the homemakers are more like independent contractors than "employees" in their relationship to MEPS, these same facts could equally apply to part-time employees who tend to work under similar conditions.
Evidence of some variation in the fees charged for the services rendered: There is no variation in the hourly and kilometrage rates which all of the homemakers are paid. There is no evidence of bargaining for a rate, whether the standard rate for all the homemakers, or for any particular homemaker. In this regard I can find nothing to indicate that the homemakers are acting in an entrepreneurial manner consistent with being independent contractors.
Integration into the employer's operations: The homemakers appear to be a stable roster of available persons to whom MEPS can assign work in accordance with the needs of clients and the homemaker's particular criteria. MEPS does not have a casual relationship with these individuals, indeed at present it is required to offer them assignments in order that they can work to the extent of their protected volume. Further, that protected volume also reflects a prior higher level of commitment at least immediately preceding the inception of this CCAC. MEPS monitors and assesses their work on an ongoing basis in a structured manner against common standards. Homemakers are given a manual by MEPS indicating how they should perform their work. There are dress guidelines. Homemakers are assessed on whether they attend at client case conferences or meetings with the service team. In the event that there may be problems with a client, homemakers are supposed to complete reporting forms for MEPS. The group of homemakers is so stable that no new homemakers have been added since about 1993. Furthermore, although the homemakers do not have to come into the MEPS office very often, if at all, they can communicate with the organization through the established voice-mail service, or calls to the Homemaking Coordinator. One additional factor often considered in assessing the level of integration is the amount of time an individual must work for the contracting party: In this case, and as outlined earlier, the homemakers commit on average about one third of a full-time equivalent of time to MEPS. However, as outlined earlier, I am not convinced that this factor on its own can be of much assistance in a period of increasing part-time work as there are many types of part-time employees who would have as seemingly limited a connection to an employer as these homemakers have to MEPS. On the whole, having regard to all of the indicia outlined above, the homemakers would appear to me to be quite integrated into the MEPS organization.
Degree of specialization, skill, expertise or creativity required: There is no evidence before the Board of a need for a particular level of specialization, skills, expertise, or creativity to perform homemaking tasks. This is not to say that the homemakers are without skills, but rather that they do not appear to need particular and stringent training to perform their tasks. This is therefore not a dominant element in the relationship of these individuals to MEPS, and would appear to be a neutral factor.
Control of manner and means of performing the work: MEPS does not discipline the homemakers, but it does perform periodic assessments of their work performance. If poor performance is found, or as a result of an investigation of a complaint, MEPS can terminate a contract for services with a homemaker. Furthermore, as noted earlier, MEPS sets the standards for performance of jobs, issues guidelines for how homemakers should dress, and it schedules homemakers to do work at particular times. While homemakers can arrange to change the time at which work will be performed, they must inform the Homemaking Coordinator of that change before or after the work has been performed at the changed time. It would appear to the Board that there is a fair degree of control over the manner in which the homemakers perform their work.
Contract amount, terms and manner of payment: Homemakers invoice MEPS for the hours of work they perform, and are paid a gross amount without any payroll deductions being made. There is no ability to block bill. The "Contract for Provision of Services" does not contain any provision for termination of the contract and there are no notice provisions, however the contract is for a one year period. Homemakers must invoice MEPS on particular forms, or on an authorized alternative form. They are paid twice a month, on the first and on the fifteenth. As outlined in the evidence above, protected volumes of work are transferable to agencies so long as they are authorized by MEPS. However, if there is a transfer, the agency is paid at a different and higher hourly rate, and does not receive any payment of kilometrage. Homemakers do not bargain with MEPS regarding the rate they will be paid, by the hour or regarding kilometrage. All of the above suggests a relationship more akin to that of an employer and employee than a contractor and an independent contractor. The homemakers are only paid after they submit what look a lot like time sheets, and they are paid regularly twice a month.
Similar conditions to employees: MEPS has no "direct hire" employees performing homemaking services. It does have some employees who are providing other services to clients of MEPS, and these individuals are remunerated differently. They are covered by the hospital's employee benefit plan, have source deductions made from their wages, receive vacation entitlement, and unlike those with contracts for services, are presently entitled to 90% protected volume until the year 2001 if they leave MEPS this year.
My review of all of the factors outlined above suggests that homemakers have some control over when they do their work. They are provided with dress guidelines to guide them in how to present themselves. The homemakers have very little control over how they perform their work as the MEPS manual directs how work is to be performed. They have no control over how they are remunerated as there is no bargaining over rates. All homemakers are paid the same hourly and kilometrage rates. They can only use substitutes who have in essence been pre-approved by MEPS because they are other contract homemakers, and MEPS then pays those persons directly. Homemakers must invoice in a particular and circumscribed manner and by particular times in each month. They are assessed regularly in a format which looks remarkably like an employee evaluation. MEPS will provide homemakers with the only "equipment" they may need i.e. latex gloves. There is simply no evidence of entrepreneurial activity on the part of the homemakers; they do not appear to have any scope to make a profit or to incur a loss since they are paid on an hourly basis, with mileage, MEPS pays any substitutes who work for an unavailable homemaker, and MEPS collects any monies needed from clients so that no homemaker suffers a loss if a client fails to pay. Finally, the homemakers appear to be integrated into the MEPS organization and are a very stable group of service providers.
The facts which would point to some level of independence are that the homemakers have non-exclusive contracts; they can accept or turn down work; they can express some preferences which the Homemaking Coordinator will attempt to accommodate; and "employees" of MEPS receive different forms of remuneration from the contract homemakers. In my view the first three of these facts are not unlike the situation that usually prevails for part-time workers or dependent contractors who must inform their employer of their availability, who can express some preference for type of work, and who, by virtue of not having sufficient hours of work available from one employer, may work for other employers as well. The Board has traditionally found that such workers are "employees" within the meaning of the Act, so long as they meet other criteria which normally define employee status.
The only remaining area in which the homemakers differ from employees of MEPS is in their respective forms of remuneration. However, being paid pursuant to a contract of employment is not in and of itself a factor which the legislation contemplates as decisive in determining employee status. While the Board recognizes that the Tax Court found that the individuals in question were independent contractors, that finding was made pursuant to a revenue-related piece of federal legislation, and was not made in a labour relations context. I am therefore not persuaded that it is of much assistance to me in reaching a decision in this case.
Having reviewed the agreed statement of facts, the documents presented, and the parties' submissions, on balance I am of the view that the homemakers are in a contractual relationship of dependency with MEPS. They are therefore "dependent contractors" and are employees for purposes of the Act.
No statement of desire to make representations has been filed with the Board within the time fixed by the Board following the taking of the representation vote pursuant to the Board's direction of June 3, 1998.
Having regard to the agreement of the parties, the Board further finds that:
all homecare workers of Huntsville District Memorial Hospital in the District Municipality of Muskoka and in East Parry Sound, save and except supervisors, persons above the rank of supervisor, Homemaking Coordinator, PCS Coordinators, Case Managers, therapists, office and clerical,
constitute a unit of employees of the responding party appropriate for collective bargaining.
On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
A certificate will issue to the applicant.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
The responding party is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted for 30 days.