2296-97-U Ontario Public Service Employees Union and its Local 672, Applicant v. le Conseil d’administration du Collège Boréal and la Coopérative du Collège Boréal Limitée, Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; September 11, 2000
This is an application pursuant to section 81 of the Colleges Collective Bargaining Act (the “CCBA”) for a determination about the employment status of certain persons. On dated June 5, 2000, I issued a decision dismissing the preliminary arguments of the Board of Governors of College Boréal (the “College”) and the Cooperative du College Boréal Limitée (the “Co-op”). Put simply, the issue is whether the true employer of persons working at the Co-op is, in fact, the College. I concluded that the Board had the jurisdiction to hear and determine the issues. I invited the parties to contact the Registrar and schedule dates for the continuation of the matter.
By letter dated June 14, 2000, counsel for the applicant noted that the Board had failed to deal with two issues that had been argued before the Board. Counsel is quite correct, and I apologize for that oversight.
The two issues are:
whether or not the Board would enquire into and make a determination as to the employment status of part-time individuals nominally employed by the Co-op
the order of proceeding
- The Board (differently constituted) had something to say about the first issue in its November 30, 1998 decision. That decision was concerned with the applicant's request for production of documents, and answers to specific questions that it wanted from the responding parties. Part of the information sought concerned the identity of part-time employees. The Board granted much of the disclosure requested. But at paragraphs 12 and 13, the Board wrote:
I am, however, troubled by the union's request for information regarding persons who, even if they are otherwise employed by the College, may not be employed in a bargaining unit and therefore may not be "employees" within the meaning of the Colleges Collective Bargaining Act.
The applicant has only recently identified the persons it asserts are the "employees" who are subject to this application. (Their names are included on a list filed by the applicant which appears to be a list prepared by the Coop and faxed to its counsel.) And while there may be disputes about whether some other persons regularly work not more than 24 hours per week, I am left with the sensation that in respect to this potential class of individuals the union (particularly when it has not identified any individual it claims is an employee claimed by the responding parties to be part‑time) is using this process to establish rather than to support its case. Accordingly, I have not directed the provision of information sought in relation to what the parties have sometimes referred to as the "part‑time employees".
Applicant's counsel indicated that she was seeking guidance from the Board about whether it would be prepared to determine the status of the part-time employees. Counsel for the College and the Co-op submitted that as the Board hinted in its earlier decision, the Board has no jurisdiction on this issue. He submitted that part-time staff whose positions "mirror" those under consideration by the Board do not fall into the Schedule 2 bargaining unit. The definition of the support staff bargaining unit specifically excludes (among others) "persons regularly employed for not more than twenty-four hours per week".
Counsel for the responding parties submitted that, as the Board has already suggested, part-time employees in support positions are not "employees" under the CCBA. Since the applicant cannot represent them in the bargaining unit that is the subject of this proceeding, it would be a meaningless exercise to determine the employment of the part-time support employees.
Section 1 of the CCBA defines "employee":
"employee" means a person employed by a board of governors of a college of applied arts and technology in a positions or classification that is within the academic staff bargaining unit or the support staff bargaining unit set out in Schedules 1 and 2
- In previous decisions, the Board has held that this definition of "employee" excludes certain persons from coverage by the CCBA. For example, in St. Clair College of Applied Arts & Technology [1980] OLRB Rep. Mar 1067, the Board said at paragraph 42:
The determination of employee status involves a two-step process (what the Board in Sheridan College of Applied Arts and Technology [1976] OLRB Rep. Dec 844 referred to as the "primary" and "secondary" characterization). Section 1(f) of the Act defines "employee" as a person within one of the units specified in the schedules. A perusal of the schedules will identify certain individuals clearly excluded on the basis of readily ascertainable criteria – for example, persons employed for less than 21 hours per week (Schedule 2(vi)….
[emphasis added]
In Sault College of Applied Arts and Technology [1985] OLRB Rep. Aug. 1293, OPSEU brought an application for certification to seek to represent part-time employees of a community college. The application was brought pursuant to the Labour Relations Act. The Board concluded that not only did the CCBA not apply to part-time employees, neither did the Labour Relations Act. The Board also considered and rejected an argument that the lack of a statutory mechanism to form a trade union and to bargain collectively was a breach of the Canadian Charter of Rights and Freedoms.
I agree with the Board's analysis in those decisions. As odd and arguably unjust as it seems, it appears that there is no legislative basis for part-time employees of community colleges to participate in collective bargaining. Given this legal landscape, there is no point (much less a jurisdictional foundation) for me to enquire into the status of the part-time employees. If I were to find that they were employees of the College, I would not be able to issue a remedy.
Turning to the question of the order of proceeding, the applicant alleges that the responding parties should proceed first, because they are more knowledgeable than the applicant about the relationship between the College and the Co-op than is the applicant. The responding parties submit that there is no reason to depart from the typical order of proceeding; since the applicant is making the assertions, and bears the onus of proof, it should proceed first. Counsel noted that they have provided significant pre-hearing disclosure in this case, so it cannot be said that the applicant is unaware of the facts. Counsel for the College also wanted to reserve the opportunity to make an argument that the applicant had not made out a prima facie or arguable case.
I have concluded that there are not sufficient reasons to depart from the customary order of proceeding. The applicant will proceed first.
The parties should contact the Registrar to arrange dates to continue this matter.
“Mary Ellen Cummings”
for the Board