Arbitrator finds employer improperly contracted-in bargaining unit work
Ryan Newell and Erica Cartwright successfully argued that the employer’s assignment of bargaining unit work to agency workers during the COVID-19 pandemic violated the collective agreement; arbitrator awards damages to the Union.
Background
The Union holds bargaining rights for employees of Compass Group Canada Ltd. (“Compass”) engaged in cleaning, maintenance and dietary services at various Long Term Care (“LTC”) facilities throughout the Province of Ontario. Following the declaration of the COVID-19 Pandemic, Compass began to assign a significant amount of bargaining unit work to temporary workers supplied by third party staffing agencies. The Union filed a grievance alleging Compass had improperly contracted in bargaining unit work to temporary agency workers. In the alternative, the Union alleged Compass had contracted out bargaining unit work in violation of the collective agreement, which allowed the company to contract out bargaining unit work in “emergency situations”.
The Arguments
The Union asserted that Compass had failed to effectively abdicate control of the bargaining unit work to the staffing agencies and was in fact the notional employer of the agency workers. It argued that the evidence established the agency personnel were working alongside the bargaining unit employees performing the same work, utilising the same materials and equipment provided by Compass and under Compass’ supervision and control. The test for contracting in was clearly met in these circumstances.
Compass argued that the Union was estopped from taking the position that its use of agency workers to perform bargaining unit work constituted contracting in. In the alternative, Compass contended that it was not the true employer of the agency workers.
The Decision
Arbitrator Bernhardt concluded that estoppel did not apply, and accepted the Union’s argument that Compass’ use of agency personnel to perform bargaining unit work constituted improper contracting in, contrary to the entire collective agreement. In her view, Compass maintained fundamental control over the working conditions of the agency personnel during the relevant period, and as a result, Compass’ had contracted in the bargaining unit work in violation of the collective agreement, finding as follows:
As a result, as outlined under the York Condo and Pointe-Claire tests for determining who has the “fundamental control over working conditions”, Compass was contracting in the TAWs during the relevant time period.
…
As this is a situation not covered by the requirements of the contracting out provisions of the C/A, the rest of the C/A applies. Under the Recognition provisions in article 1.01, the Union is the sole and exclusive bargaining agent for all of the employees at all of the Homes performing cleaning, maintenance and dietary work (subject to exceptions that are not relevant in this case). Under the Union Security provisions in article 2 the Employer is required to collect and submit union dues from all employees.
By way of remedy, the arbitrator ordered Compass to compensate the Union for dues that would have been received for all work performed by the agency personnel for a certain period.