TORONTO, (July 26, 2004) — The dominos continue to fall two years after a landmark Canada Industrial Relations Board (CIRB) decision that certified the Teamsters union to bargain for about 200 independent owner-operators and agency drivers contracted to Oshawa, Ont.-based Mackie Moving Systems.

Many issues affected the decision, but the CIRB said the critical factor was the day-to-day control Mackie had over the contract workers. The fact that Mackie determined the drivers’ hours, salary, issued ID badges, trained the drivers, and disciplined them made the drivers de facto employees under the Canada Labour Code and thereby eligible for collective bargaining.

Several cases in which boards or the judiciary must answer “who is the employer?” have since arisen at the federal and provincial levels, usually with similar results to the Mackie decision. Recently, the Ontario Labour Relations Board (OLRB) echoed the CIRB when it issued the first-ever Ontario ruling for the purposes of the Labour Relations Act. In that case, Lantic Sugar was deemed to be the “true employer” of several Advantage Personnel agency drivers whom the Teamsters were trying to sign. “Lantic has more to say in [the drivers’] day-to-day working lives than Advantage,” OLRB stated.

Christopher Andree, a labour attorney for Crawford Chondon & Andree in Toronto, said the OLRB decision was no surprise. “Everyone took the Mackie decision and assumed it would apply at the OLRB level. As it turns out, that’s exactly what happened,” he told Today’s Trucking. “Essentially it’s the same result whether you’re federally or provincially [regulated].”

Again, control was the key issue. But another important test was the degree to which the agency drivers were “perceived to be employees.” Andree says such criteria can include whether the company allows contract workers to use the same entrance as employees; invites them to company functions; issues uniforms; or recognizes their work with awards. “Frankly,” he explains, “it can come down to something as simple as the amount of interaction the driver has with the company as compared to the [driver service].”

While these rulings bear watching, Andree says, criteria used to determine who is the “true employer” is only significant in labour board cases involving collective bargaining and not necessarily other labour issues covered, for example, by the Employment Standards Act.

He points to the “Eaton Yale Decision” of 2000, where two veteran agency drivers assigned to Eaton Yale were let go after the company closed up shop. Because of their years of service to the company, and the amount of control Eaton Yale had exercised over their working lives, the drivers claimed they should have received severance pay.

Despite concluding that Eaton exercised control, directed pay, included the drivers in employee functions, as well as the fact contact between drivers and the agency was “almost non-existent,” the judge said the drivers were the subjects of the agency and not Eaton Yale.

“It would seem that the [importance] of the criteria changes depending on the purpose,” says Andree. “It was found in this case that ‘We don’t care what they find in the LRA context for [collective bargaining], because that’s not the purpose in this specific case.'”

While the Eaton Yale decision is a partial victory for employers, unions remain on the hunt for members — especially given new hours-of-service rules, says Ronald Ouellette, a labour lawyer with Sherrard Kuzz of Toronto. Now that lost time at docks is literally lost money, an owner-operator who sees unionized drivers get preferential treatment at shipping yards might be more receptive to dialing up the local rep.

“While most owner-operators are by nature independent, there may be a few that may now be more likely to look for ways to make up for that [HOS] impact, whether it’s to negotiate an hourly rate, or whatever,” says Ouellette. “That may motivate some people, assuming that their mindset is already going towards union.”

Moreover, Ouellette expects unions, with the Mackie decision in their back pocket, to use HOS as a recruiting tool. “People in the industry are not appreciating the significance of these cases,” he says. “You have a union that knows it’s in a very strong position to hit companies with owner-ops and agency drivers and take them down. Any carrier that keeps its head in the sand will not be operating in the future as a non-union entity unless it makes the operational changes they need to make.”

— Read the complete story in the July/Aug. print issue of Today’s Trucking