Although this may seem like a simple and straightforward question, the analysis can be complicated.
How does the Ontario Labour Relations Board ("OLRB") go about deciding which of two (2) companies is the employer of certain employees who are subject to an application for certification?
The most recent case to consider the issue is UFCW Canada, Local 1000A v. Sysco Fine Meats of Toronto, 2013 CanLII 9932 (ON LRB). This is an important case as it draws together the older cases on the issue and the more recent reformulation of the approach at the OLRB.
The UFCW, Local 1000A filed an application for certification at Sysco Fine Meats of Toronto, a Division of Sysco Canada, Inc.. The union sought to exclude certain temporary workers supplied to Sysco by an employment agency. The question that the OLRB had to decide was whether Sysco or the employment agency was the true employer of the employment agency.
The Traditional Approach
The traditional approach to the issue was discussed in the leading case of York Condominium Corporation,  OLRB Rep. Oct. 645 where the OLRB set out the following seven criteria:
- The party exercising direction and control over the employees performing the work;
- The party bearing the burden of remuneration;
- The party imposing discipline;
- The party hiring employees;
- The party with authority to dismiss the employees;
- The party perceived to be the employer by the employees; and
- The existence of an intention to create the relationship of employer and employee.
The OLRB observed that criteria 5 and 6 are generally unhelpful "and it is true that one would be hard pressed to find a case where they played any part in the final conclusion." The OLRB also discounted criteria 5 and so concluded that there are really only four (4) helpful criteria "with the ultimate question being capsulized by asking “which entity exercises fundamental control over the working lives of the individuals in issue”.
The Re-Visiting of the Test
According to this more comprehensive approach, the legal subordination and integration into the business criteria should not be used as exclusive criteria for identifying the real employer. In my view, in a context of collective relations governed by the Labour Code, it is essential that temporary employees be able to bargain with the party that exercises the greatest control over all aspects of their work—and not only over the supervision of their day‑to‑day work. Moreover, when there is a certain splitting of the employer’s identity in the context of a tripartite relationship, the more comprehensive and more flexible approach has the advantage of allowing for a consideration of which party has the most control over all aspects of the work on the specific facts of each case. Without drawing up an exhaustive list of factors pertaining to the employer-employee relationship, I shall mention the following examples: the selection process, hiring, training, discipline, evaluation, supervision, assignment of duties, remuneration and integration into the business.
The OLRB in B.M. Metals Services Inc. then stated:
The analysis must also be purposive. This is an application for certification. As the Board asked in Grant Development Corporation“what choice appears to be more consistent with the statutory and labour relations framework within which the Board operates”. There is little value in certifying a union to represent a group of employees, and then direct it to bargain with a party that has no substantial control of the employment relationship.
I conclude that the reference to the York Condominium Corporation decision is unhelpful. It is more useful to focus on the facts relevant to the kind of issues referred to in the Supreme Court of Canada’s non-exhaustive list, that enable the Board to come to the conclusion that one party or the other exercises the most control over all aspects of the work of the employees in question. [Emphasis added]
The OLRB in Sysco Fine Meats of Toronto adopted the above approach. The OLRB further held that even where the the company to which the agency supplies temporary employees is found to be the employer, this will not automatically mean that the temporary employees will be included in the bargaining unit.
The Board then considered the degree of "control" exercised over the temporary employees by Sysco and the agency. Although the agency had control over the selection and hiring of the temporary workers, transporting them to and from Sysco’s plant, and paying their wages, which are established by Sysco. Sysco has control over "matters dealing with training, discipline, evaluation, day-to-day supervision, assignment of duties, and amount of remuneration, and most importantly the actual number of temporary workers that will be hired from time to time from Better Labour. Further, there is a high level of integration of the temporary workers into Sysco’s workplace."
The Board found that Sysco was the true employees of the temporary employees.
Appropriate Bargaining Unit
The Board then went on to consider the applicable principles when determining the appropriate bargaining unit. The Board stated:
As stated above, simply because Sysco is found to be the true employer of the temporary employees does not automatically result in them being included in the bargaining unit. The responding party argued strenuously that there was a strong community of interest amongst both Sysco’s full-time employees and the temporary employees as they were, inter alia, performing the same work, well integrated into the workplace by working under the same work rules and governed by the same policies (such as the hygiene, harassment, and safety policies). Further, the temporary workers made up approximately 18% of the meat processing unit the union was seeking to represent, being a substantial number. To not include the temporary employees, the employer argued, would lead to an unacceptable fragmentation.
Despite these arguments, and others, the Board found that the Union's proposed bargaining unit, which excluded, temporary workers, was appropriate and made "labour relations sense".
Based on the results of the representation vote, the Board certified the trade union.