Ontario union claims victory in case involving temps

The Ontario Public Service Employees Union (OPSEU) is hailing a recent arbitration decision as a major victory for temporary workers

According to the union, arbitrator Rick MacDowell ruled that temporary employees of the former Ontario Property Assessment Corporation (OPAC, now called the Municipal Property Assessment Corporation - MPAC) were unjustly excluded from the collective agreement between OPAC and OPSEU covering the period 2000 to 2002.

OPSEU president Leah Casselman called the ruling “visionary” and said it would have a profound impact on the way current and future temporary employees hired from outside private agencies are treated by their employers.

“The significance (of the ruling) should not be underestimated,” said Casselman. “The increased level of temporary workers hired from employment agencies is frightening and this decision should begin to put the brakes on employers who ignore our firm position that temporary workers are, in fact, covered by collective agreements.”

The union filed a policy grievance about the hiring by MPAC of 64 temporary data-entry clerks because MPAC didn’t have enough bargaining unit employees to finish a major overhaul of centralizing assessment and property records. MPAC turned to Pro Temps, an outside employment agency, to source the workers.

In the deal between MPAC and Pro-Temps, the agency was paid a flat rate of $17.05 an hour, out of which the agency paid the workers $11 an hour less statutory deductions — an amount significantly less than the amount contained in the collective agreement for temporary staff. The balance, of more than $6 an hour, was retained by Pro Temps as a markup, the union said.

According to the union, MPAC took the position that Pro Temps was the legitimate employer of the temporary workers because it retained fundamental control over the employment arrangement.

In its policy grievance, OPSEU challenged MPAC’s interpretation of the employee’s relation to Pro Temps. The union argued there was no functional separation between bargaining unit employees and agency staff. Therefore, there had not been a legitimate act of contracting out.

The arbitrator sided with the union. He said MPAC had improperly failed to apply the collective agreement to the 64 affected workers. He pointed out that the recognition clause of the collective agreement obligated the employer to recognize OPSEU as the “sole and exclusive” bargaining agent for “all employees of the employer,” and that the term “employee” was clearly defined in the collective agreement to include “regular and temporary employees,” the union said.

The arbitrator cited several reasons for his decision, including the fact MPAC exercised direction and control over the employees’ work, that it bore the burden of remuneration and that it maintained the authority to hire and fire the temporary employees.

The union said the arbitrator ordered MPAC to pay a sum of money to OPSEU to cover the amount that would have been deducted from the 64 workers in union dues.

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