In Ontario Public Service Employees Union v La Cité, Emond Harnden’s own André Champagne and Joël Rocque successfully secured the dismissal of an unfair labour practice complaint against the employer, the College La Cité. Vice-Chair Johanne Cavé of the Ontario Labour Relations Board (OLRB) upheld the employer’s decision to replace counselling services previously performed by College employees with an external organization as a lawful contracting out of services permitted under the collective agreement.
Background
The Ontario Public Service Employees Union (OPSEU) was the bargaining agent for the College’s counselors who provided students with mental health support, accommodation, placement services, academic support, and psychometric guidance services, through the Centre de la réussite collégiale (CRC).
In 2019, the College closed the CRC and eliminated all its counselor positions. Concurrently, the College entered into an agreement with an external organization, the Centre d’appui et de prévention (CAP), to deliver counselling services under a program named “La Boussole.” La Boussole is staffed with unionized employees of the CAP, represented by the Association des enseignantes et des enseignants franco-ontariens (AEFO).
OPSEU alleged that the College unlawfully contracted in the positions of the CRC counselors to the CAP and that the College was the real employer of the employees hired to perform the duties of the former College counselors. OPSEU further submitted that the College engaged in an unfair labour practice by eliminating the internal counselor positions and replacing them with employees from an outside organization, and then interfering in that organization’s hiring process, all for anti-union reasons.
Both parties agreed that the collective agreement between the College and OPSEU did not prohibit the College from contracting out certain activities as part of its management function, provided that such a decision was not motivated by anti-union animus.
Decision
Vice-Chair Cavé concluded that the College properly contracted out the services to the CAP rather than contracted in. The OLRB further determined that the CAP was the real employer of the employees working at La Boussole, and that the College’s decision was not motivated by anti-union animus.
Is the College the real employer of the employees at La Boussole?
The OLRB found that the CAP was the real employer of the employees working at La Boussole, and not the College. The OLRB weighed the factors such as the party exercising direction and control over the employees, bearing the responsibility for remuneration, and was perceived to be the employer by the employees, concluding that:
- The College did not have the authority to establish policies for the employees or had the power to hire or dismiss employees.
- The quality and the range of services offered by La Boussole were different from those of the previous CRC.
- While there was some level of integration between the College and La Boussole’s programs, the OLRB found it to be necessary given the academic context and the nature of the counselling services, as well as ensuring compliance with the regulatory requirements.
Contrary to OPSEU’s position, the OLRB concluded that the CAP’s services had not been contracted in, but rather lawfully contracted out.
Was the College’s decision to contract out the CRC services, not to employ previous CRC employee, motivated by anti-union animus?
The OLRB determined that the contracting out of services was motivated by legitimate business reasons, which were to improve mental health support and accommodation offered to students. In the absence of a provision in the collective agreement limiting or prohibiting contracting out or requiring consultation with employees, the College was within its rights to contract out the CRC’s services.
With respect to the candidacy of a former CRC employee, the OLRB opined that since the CAP was the real employer of the employees working at La Boussole and since the decision to contract out the work of the counselors was not motivated by anti-union animus, the fact that the College expressed an opinion on the potential candidacy of a former employee could not constitute anti-union animus. Since the College is not the “employer” of the employees working at La Boussole, its actions cannot constitute an impediment to the Act.
In Our View
The decision provides helpful insight into the occasions when unionized employers are entitled to lawfully contract out services. Employers should carefully review the language of their collective agreement and seek legal advice prior to making business decisions of this nature.
For more information about this decision or your rights to contract out work, please contact André Champagne at achampagne@ehlaw.ca or Joël Rocque at jrocque@ehlaw.ca.
