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.

APPEARANCES: Ursula Boylan, Larry Sauer and Lise Constantineau for the applicant; George Vuici and Diane Beland for College Boréal; Marcel Leger for la Coopérative du Collège Boréal Limitée.

DECISION OF THE BOARD; June 5, 2000

1. The applicant, the Ontario Public Service Employees Union (OPSEU or the union) has made an application pursuant to section 81 of the Colleges Collective Bargaining Act (the CCBA) for a determination about the employment status of certain persons. Both of the responding parties, the Board of Governors of College Boréal (the College) and the Cooperative du College Boréal Limiteé (the Co-op) have raised as a preliminary issue that the Board is without the jurisdiction to entertain this application. A bilingual oral hearing was convened to hear the parties' submissions with respect to this preliminary issue.

2. The parties provided the Board with an agreed statement of facts:

3. The responding parties, Collège Boréal (the College) and the Collège Boréal Cooperative (the Co-op) are legally distinct entities. The College was formed in 1993, in accordance with a Ministerial directive by virtue of the Ministry of Colleges and Universities Act, R.S.O, 1990, c.M19. The College is a college of applied arts and technology within the meaning of this statute and the Colleges Collective Bargaining Act. For its part, the Co-op was created in 1996, by virtue of the Co-operative Corporations Act, R.S.O. 1990, c. C 35. The Co-op is a Co-operative within the meaning of the Act.

4. The correct name of the Co-op is the Cooperative des apprenantes et apprenants Boréal limitée.

5. Each of the responding parties is governed by its own autonomous governing council.

6. The members of the College’s governing council are appointed by the government of Ontario. In turn, the governing council appoints the President of the College. The President appoints the members of the administration, who direct the College’s employees.

7. The members of the Co-op’s governing council are elected by members of the Co-op, of which the great majority are students at the College. The governing council of the Co-op appoints the administrators of the Co-op, including its General Manager. The General Manager is employed in accordance with a contract of employment with the Co-op, and his or her salary and benefits are paid by the Co-op.

8. The College retains the services of contractors to provide incidental services, including maintenance of buildings, security, bookstore and food services. Of these, the bookstore and food services are provided by the Co-op.

9. To that end, the Co-op “employs” a number of employees. These individuals are hired by the General Manager of the Co-op, and are employed under contracts of employment with the Co-op. The salaries and benefits for these employees are assumed entirely by the Co-op. The Union maintains that the College is the true employer of these individuals.

10. The relationship between the College and the Co-op is set by contract, which is attached as Appendix A.

11. The contract has a 5 year term and is renewable. The contract sets out the nature of the services provided, and gives the Co-op the freedom to determine how those services are to be delivered, with some restrictions. For example, the bookstore is required to stock course materials in sufficient numbers. The Co-op is required to advise the College of the products and services it intends to offer, and the College can refuse the right to offer products which are a threat to health, security or morality, or which contravene the law.

12. The Co-op’s opening hours must meet the needs of customers, and must be posted, with any changes negotiated with the College. The Co-op can set the book store prices, but all food service prices are subject to College approval. The Co-op is obliged to provide its audited financial statement to the College annually. The Co-op’s rent, including services, is calculated as a percentage of total sales.

13. It is also of value to set out the relevant statutory provisions from the CCBA.

14. …

"employee" means a person employed by a board of governors of a college of applied arts and technology in a position or classification that is within the academic staff bargaining unit or the support staff bargaining unit set out in Schedules 1 and 2;

"employer" means a board of governors of a college of applied arts and technology;

81. If, in the course of bargaining for an agreement or during the period of operation of an agreement, a question arises as to whether a person is an employee, including a question as to whether a person employed as a chair, department head, director, foreman or supervisor is employed in a managerial or confidential capacity within the meaning of the definition in section 1 of “person employed in a managerial or confidential capacity” and the Schedules, the question may be referred to the Ontario Labour Relations Board and its decision thereon is final and binding for all purposes. R.S.O. 1990, c. C.15, s.81.

82. Essentially, the union maintains that the employer of the persons who work at the Co-op is the College, and that the Co-op is merely the nominal employer. The union asks the Board to make that determination pursuant to section 81 of the CCBA.

83. Counsel for the College acknowledged that when the Board exercises its powers pursuant to section 114(2) of the Labour Relations Act to determine the status of an employee, the Board has the jurisdiction to determine the identity of the employer. However, counsel submitted, when the Board is engaging in what appears to be a similar enquiry under section 81 of the CCBA, its powers are circumscribed by both the CCBA as a whole, and the definitions of "employee" and "employer" in section 1. Put simply, the only possible employer under the CCBA is a college of applied arts and technology, and the only possible employee is a person employed by a college of applied arts and technology. It is within this circumscribed framework, counsel argued, that section 81 is to be interpreted and applied. Section 81 is available and intended only to determine disputes about whether employees of colleges fall within one of the legislated bargaining units, within the excluded part-time group, or within a managerial or confidential exclusion.

84. In this case, counsel for the College argued, all the agreed facts point to the Co-op and not the College as the employer. The Co-op hires all the employees, and pays their salaries and benefits. It is not within the Board's jurisdiction to conclude that the employees are employed by the College. Counsel relied significantly on a decision of the Supreme Court of Canada in Public Service Alliance of Canada v. Her Majesty the Queen and Econosult Inc., 1991 CanLII 88 (SCC), [1991] 1 S.C.R. 614. The Solicitor General of Canada decided to contract out the provision of teaching services in penitentiaries. The Public Service Alliance of Canada (PSAC) brought a complaint to the Public Service Staff Relations Board seeking a declaration that the teachers provided by the contractor were, in fact, employees of the Government and part of the PSAC bargaining unit. In bringing its application, PSAC relied on section 33 of the Staff Relations Act which reads:

85. …

"employee” means a person employed in the Public Service, other than [exceptions not applicable] …

33. Where, at any time following the determination by the Board of a group of employees to constitute a unit appropriate for collective bargaining, any question arises as to whether any employee or class of employees is or is not included therein or is included in any other unit, the Board shall, on application by the employer or any employee organization affected, determine the question.

34. The Public Service Relations Board concluded that when the substance of the relationship, rather than its form, was examined, the Government was the employer. At the Federal Court of Appeal, that decision was overturned. PSAC then appealed to the Supreme Court of Canada.

35. The Supreme Court agreed with the Federal Court of Appeal that Parliament had established separate labour law regimes for public sector and private sector employees. But the principal reasoning of the Court focused on the language of the statute. At page 630, the Court said:

In my opinion the wording of s. 33 itself, aided by the definition of the word “employee” provided by s. 2, is practically decisive in this case. Section 33 is intended to enable the Board to resolve any question as to whether an employee or class of employees is or is not included in a bargaining unit. In the absence of a definition of “employee”, it could be argued that the Board could determine who is an employee on the basis of tests that are generally employed in labour matters. These tests are customarily employed to resolve a dispute as to whether a person is an employee or an independent contractor. The express definition of “employee”, however, shows a clear intention by Parliament that it has decided the category of employee over which the Board is to have jurisdiction. It is restricted to persons employed in the Public Service and who are not covered by the Canada Labour Code. The Board’s function by the very words of s. 33 is not to determine who is an employee but rather whether employees who come within the definition provided, are included in a particular bargaining unit.

11. Counsel for the College argued that the same analysis should be applied in this case. “Employee” is similarly narrowly defined in the CCBA to include only those employed by a college, and section 81 of the CCBA, like section 33 of the Staff Relations Act gives the Board the power only to determine if an individual is part of a bargaining unit, and if so, which one. As the Court found in Econosult Inc., such a provision does not give a plenary power to enquire into who is the employer. Counsel submitted that the following excerpt from Econosult Inc. at page 635 was equally applicable to the case before me:

In providing a clear definition of the employees and the employer who are subject to the Board’s jurisdiction, it was not the intention of Parliament to rely on the expertise of the Board to extend the reach of this definition. Indeed, the source of the Board’s error is its reliance on its general labour expertise which led it to rely on criteria developed under other different labour legislation when it ought to have applied the clear definition of “employee” provided by Parliament.

12. Counsel highlighted that the Board has already recognized the limited range of its enquiry in a section 81 application. In Fanshawe College of Applied Arts and Technology [ 1991] OLRB Rep. Sept. 1044, after setting out the definition of “employee” in the CCBA, the Board wrote at paragraph 3:

In contrast to applications to the Board under section 106(2) [now 114(2)] of the Labour Relations Act, in applications under section 81 of the CCBA the Board determines whether or not a person with respect to whom the application is made is in a bargaining unit to which the CCBA applies.

13. Counsel’s second argument was that OPSEU was really seeking to bring a “related employer” application, which was fashioned as a section 81 matter because there is no related employer provision in the CCBA. Counsel cautioned that the Board could not “import” the jurisdiction to make a related employer direction from the Labour Relations Act, in the face of legislative silence in the CCBA. Counsel submitted, that on the agreed facts, it was clear that the Co-op was the employer of the employees, and it was not plausible to conclude that the College was the “true employer”.

14. Counsel submitted that this issue belongs at arbitration, if anywhere, because the real dispute is whether the College can contract out the work that is being undertaken by the Co-op. Alternatively, the union can seek to organize the employees at the Co-op under the Labour Relations Act.

15. Counsel for the Co-op adopted the arguments of the College. He also reiterated that the CCBA is intended to regulate the labour relations between colleges and their employees; the identity of the employer is never an issue. In fact, he could find no cases in which the Board had entertained a section 81 application involving a party other than a college, and a trade union representing employees at a college.

16. Counsel for the union argued that when determining the status of an employee under what is now section 114 of the Labour Relations Act, the Board has consistently held that such an inquiry may include determining if the individual is an employee of the employer who is party to the application before it (see Ontario Hydro [1981] OLRB Rep. July 931 and Kennedy Lodge Inc. [1984] OLRB Rep. July 931). Section 81 of the CCBA is a parallel provision, and in applying and interpreting it, the Board has the necessary jurisdiction to determine all matters going to status, including determining who is the real employer of the individual at issue, a rather fundamental question.

17. Counsel reminded the Board that the CCBA is intended to confer bargaining rights on employees of colleges and as the Board said in Fanshawe College (above) at paragraph 12. “It would frustrate this legislative intent to interpret the statutory exclusions in a manner which would erode or undermine those bargaining rights”. Counsel conceded that the context of this case is different, but the principle is the same; the College has eroded the union’s bargaining rights by juxtaposing the Co-op between the College and the employees with the goal of removing the employees from the bargaining unit.

DECISION

18. I have concluded that the Board does have the jurisdiction to hear this matter.

19. While on first reading Econosult appears relevant, the statutory language and contexts are quite different. The language of section 81 of the CCBA requires the Board to engage in a two step inquiry; first, to determine “….whether a person is an employee…” of a college and if the answer is yes, the Board proceeds to the second step; does the employee fall within one of the two bargaining units?

20. Section 31 of the Staff Relations Act, in contrast, does not require the Public Service Staff Relations Board to determine if a person is an employee of the Government. This distinction is recognized and relied on by the Supreme Court of Canada in the passage already quoted. The Supreme Court was also clearly troubled by the Public Service Staff Relations Board effectively “appointing” persons to the public service, a result, the Court determined, that was precluded by a proper interpretation of section 2 and 33 of the Staff Relations Act. The same concern does not present in this case.

21. I agree with counsel for the applicant that section 81 of the CCBA, like section 114 of the Labour Relations Act, 1995, necessarily requires the Board to identify the employer of the person as part of the exercise of determining status. The identity of the employer of the person at issue is a necessary and fundamental issue in any status case. Of course, if the Board determined that the employer of the persons at issue was the Co-op, that would be the end of the enquiry, because the Co-op is not an employer whose labour relations are governed by the CCBA, but the Board still has the jurisdiction to make the enquiry.

22. I conclude, therefore, that the Board has jurisdiction, pursuant to section 81 of the CCBA to determine who is the true employer of the employees at issue.

23. I understand that the agreed statement of facts set out at the start of the decision were agreed only for the purpose of arguing this preliminary jurisdictional issue. However, if the evidence that is ultimately presented to the Board approximates what is in the agreed statement of facts, it is highly unlikely that the Board would conclude that the College is the true employer of the employees.

24. The parties are invited to contact the Registrar of the Board to schedule further dates in this matter.

“Mary Ellen Cummings”

for the Board