The arbitrator's ruling on a group of workers' true employer came down to whether employees identified with the city or the temp agency. The shortness of assignments weighed in temp agency's favour.
A union filed a policy grievance arguing that temporary agency workers regularly employed by a municipal employer should be considered employees of the city.
A municipal employer regularly used the services of two temporary employment agencies: one was an internal agency for city employees. It was governed according to terms in the collective agreement between the parties; the other was an external agency that also provided the city with temporary workers.
A number of issues arose concerning the city’s differential treatment of these two groups of workers.
Some internal agency workers who transitioned directly into permanent employment with the city were able to count their time at the internal agency towards seniority and pension credits. External agency workers were not afforded the same credit for their time.
Other issues also emerged prompting the union to grieve that the employer was failing to remit dues in kind on behalf of the external agency workers as required by a letter of understanding (LOU). The union also grieved that the city was failing to comply with the LOU’s reporting requirements for the external agency workers.
Fundamental control
The parties agreed to seek a determination as to whether or not the city was the employer of these external agency employees.
The test in such cases is to determine which party exercises fundamental control over most of the aspects of the employees’ work.
Most of the superficial employment markers considered in this case favoured the agency as the employer. The agency hired the workers and the agency had the intent to create an employment relationship with the workers. The agency also had the responsibility of disciplining and firing the workers.
On the other hand, the day-to-day control and supervision exercised by the city over the agency workers was a powerful factor that pointed to the city as the employer in this case.
However, the Board determined that the significance of the city’s day-to-day control over the external agency workers was diminished by the relatively short duration of the workers’ assignments with the city. This had the effect of reinforcing the workers’ affinity and identification with the agency as the employer, the Board said.
Close call
The Board ruled that the agency was the employer.
“[T]he ‘temporariness’ of the assignments has the result of making relatively more important to the employee the factors of hiring onto a dispatch list, referral to assignments, discipline, dismissal in the sense of removal from a dispatch list, and the proportion of the hourly rate that the worker actually receives after the agency takes its margin. It makes less important the issues that arise from the client’s day-to-day control of the workplace. For example, if a worker is not happy with something that has occurred in the workplace — like a dispute with a supervisor, or recognition of hours worked — the worker may terminate the assignment and take another one. The resulting disruption, the temporary loss of income, the loss of what might be a favoured workplace, all are real detriments suffered by the worker; but not nearly to the extent that they would be if the placement with the client were six months, a year, or indefinite in duration,” the Board said.
It was a close call in this case. Indeed, the Board said, an increase in the typical duration of these temporary assignments could easily tip the scales.
“In a case as close as this one, though, we would offer the caution that it would not take much of a change in the typical duration of these External [agency] assignments to tip the balance towards a finding that the City is the employer. Day-to-day supervision and control remains a powerful consideration in defining the employer-employee relationship. It is an important function of collective bargaining to bring the ‘rule of law’ to the workplace floor. The longer the assignment, the more important this consideration will become.”
