The Ontario Labour Relations Act, 1995 defines employees who can unionize and enjoy the protections afforded by the legislation. However certain persons are excluded from the definition of employee under the Act. Specifically:
.... no person shall be deemed to be an employee,
(a) who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practise in Ontario and employed in a professional capacity; or
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
The Ontario Divisional Court recently handed down its decision in Greater Essex County District School Board in which it upheld the decision of the labour board finding that Human Resources Secretaries working for the school board were not employed in a confidential capacity in matters relating to labour relations nor exercising managerial functions within the meaning of s. 1(3)(b) of the Act.
The Divisional Court found that the standard of review was reasonableness, since the Board was interpreting its home statute and applying it to the evidence.
According to the Court, "the determination of an employee’s status is a fact-driven inquiry that lies within the Board’s specialized expertise." The Court summarized the employers' argument as follows:
The applicant argues that the Board gave an unduly narrow interpretation to s. 1(3)(b) of the Act and so applied the wrong test by looking to whether an employee has access to confidential information in relation to the bargaining unit in which the employee would be a member. As well, the Board is said to have erred in its appreciation of the evidence.
The Board referred to its earlier decision in Comtech Group Limited,  OLRB Rep. May 291 where the Board considered the employer's argument and rejected it as follows:
In this regard, counsel for the respondent submits that the capacity of the employee is unspecified in the phrase “employed in a confidential capacity in matters relating to labour relations", and that the legislation does not specifically require that the confidential information in this respect be restricted to matters relating on1y to the labour relations of the employer. It would appear that this is the first occasion in which the Board has been specifically asked to rule upon this issue. We cannot, however, accept the proposition as advocated to us by counsel for the respondent. In our opinion, the conflict of interest as envisioned in the statutory exclusion, relates to a person being "employed” in such a capacity and to which, in the normal course of his employment, such a person has access to labour relations matters which if disclosed to the union bargaining on his behalf, would have an adverse effect upon the employer. [Emphasis Added]
The Board in the Greater Essex County District School Board endorsed this position stating:
Since the decision in Comtech, the jurisprudence clearly and consistently requires that in order for an individual to be excluded pursuant to section 1(3)(b), the confidential capacity regarding labour relations in which they are employed must relate to the bargaining unit in which the individual at issue would be or is a member.
See the Board's reconsideration decision.
The Divisional Court determined that the Board's decision was reasonable.
In the end, the determination of whether an individual is employed in a confidential capacity in matters relating to labour relations is a fact based exercise that will require that the Board consider the duties and responsibilities of those sought to be excluded from collective bargaining. The purpose of the legislation will be considered in making this determination and the exclusion will be applied narrowly, as the Board noted:
The Act is “remedial” legislation that was enacted to protect and facilitate collective bargaining and any exclusions must be construed narrowly so that the Act can have its intended protective effect.
Not surprisingly, as the Board noted, "in making its determination pursuant to 1(3)(b) the Board looks for more than a mere “sprinkling” of tasks, or tasks that are occasional or peripheral in order to find a person is excluded." The Board's decision in Greater Essex County District School Board provides an excellent overview of the law and the Board's approach to these matters which has been endorsed by the Divisional Court.