Private agency ‘temps’ score major arbitration victory
In a ruling that
could have far-reaching implications for temporary workers hired
from outside private agencies, an arbitrator has ruled in favor
of a policy grievance filed by OPSEU which argued that they are
entitled to the terms and conditions of the collective
agreement.
In a case that dates
back to August 2001, arbitrator Rick MacDowell has ruled that
temporary employees of the former Ontario Property Assessment
Corporation (now called the Municipal Property Assessment
Corporation - MPAC) were unjustly excluded from the collective
agreement negotiated between OPAC and OPSEU covering the period
2000 – 2002.
OPSEU president Leah
Casselman hailed the ruling as “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
arbitrator MacDowell’s ruling should not be under-estimated. 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,” said Casselman.
The policy grievance
brought forward by OPSEU involved the hiring by MPAC of 64
temporary data-entry clerks when it was found that MPAC did not
have enough bargaining unit employees to finish a major overhaul
of centralizing assessment and property records. The corporation
turned to an outside employment agency, Pro Temps, to source the
workers.
In the deal between
MPAC and Pro Temps, the corporation paid the agency 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 was retained by Pro
Temps as its mark up.
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
employees’ 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
“true” contracting out.
MacDowell sided with
OPSEU. In his decision, the arbitrator ruled that 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 “employees” was
clearly defined in the collective agreement to include “regular
and temporary employees.”
MacDowell cited
several reasons for his decision, including the fact that 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.
As a result of the
arbitrator’s findings, MPAC was directed to pay over a sum of
money to OPSEU to cover the amount that would have been deducted
from the 64 workers in union dues.
