The Labour Relations Board can declare that two or more provincial entities (i.e. companies or institutions) are one employer for the purposes of the Labour Relations Code (the Code). This is called a common employer declaration. The Board can also declare that another company or institution is the true employer of the employees. This is called a true employer declaration.
Usually, the union is already certified to represent a group of employees of one of the entities when it brings an application to the Board for a common employer or true employer declaration. Sometimes the union brings the application at the same time it applies to be certified for a group of employees.
How does the Board decide if two or more entities are a common employer?
The purpose of a common employer declaration is to ensure that existing certifications and collective bargaining rights are preserved. The effect of a common employer declaration is that the union's certification will apply to all the entities the Board declares are a common employer under the Code.
For the Board to declare a common employer, the applicant must show:
- there is more than one entity carrying on a business
- they are under common control or direction
- they are involved in associated or related activities or businesses and
- there is a labour relations purpose served by declaring that the entities are a common employer
The Board won't declare a common employer in order to:
- give one party an advantage over the other in collective bargaining
- expand bargaining rights
Delay in filing a common employer application
If there is an excessive delay in filing a common employer declaration application, the Board may refuse to make a common employer declaration. If there is delay, the Board will consider all the circumstances including:
- how long has it been since the non-union entity started operating?
- how long has the union been aware of these operations?
- Were there any reasons for the delay in applying?
What happens if the Board finds there is a common employer?
- If the Board declares the entities are a common employer, the certification and collective agreement that is binding on one entity may be binding on the other(s).
- The Board won't usually make orders on issues such as liability for wages, benefits, or anything else governed by the collective agreement. These issues are generally dealt with in the grievance/arbitration process.
- The Board may make the common employer declaration effective prior to the decision date.
How to apply for a common employer declaration
How does the Board decide who the real employer is?
The Board may be asked to decide who the real employer is of the employees. The issue can come up if there is another company or organization that:
- the employees are integrated into, and
- has fundamental control over the employees.
In deciding whether another company or organization is the true employer, the Board will consider a wide range of factors, including:
- does it exercise direction and control over the employees performing the work,
- does it bear the burden of remuneration,
- does it impose discipline, hire, or fire the employees,
- do the employees perceive the company as their employer,
- does it show an intention to create an employer-employee relationship, and
- the nature of the industry.
The purpose of a true employer declaration is to support the process of collective bargaining. It is vitally important to effective collective bargaining that the union is bargaining with the company or organization that has the ability to make the decisions and reach a collective agreement.
Leading decisions provide useful information on how the Labour Relations Board applies the Labour Relations Code (the Code) and information on what is or is not covered by the Code.