Decision date: March 23, 2023
On September 23, 2022, IATSE Local 906 (the “Union” or “Local 906”) filed an Application for Certification with the Prince Edward Island Labour Relations Board (the “Application”) seeking to represent all stage employees except supervisors and persons above the rank of supervisors working for the P.E.I. Arts Guild Inc. (the “Employer”) at 115 Richmond Street, Charlottetown. Although initially taking the position that it had no stage workers in its employ as of the date of application, on February 2, 2023, the Guild advised the Board that it would not contest the Application.
Local 906 was successful in this Application. However, prior to being certified, pursuant to s. 13(1) and (3) of the Labour Act (the “Act”), the Board consider two issues: i) whether the bargaining unit description was appropriate for collective bargaining and ii) whether the majority of employees falling within the bargaining unit description desired to be represented by Local 906.
On the first question, the Board agreed that the bargaining unit description was appropriate. On the second question, the Board was of the view that the evidence was unclear as to which employees ought to be included in the bargaining unit. The Board undertook an analysis for three employees named Donald Richard, Nathaniel Ing, and Tanguy Merrien.
The Board concluded that Mr. Richard ought to be included in the bargaining unit even though he had not worked for the Employer as of the application date, because he had been hired by that date and therefore had a “sufficient stake and interest in this Application and its outcome”.
There was a factual dispute with regards to Mr. Merrien and Mr. Ing, both of whom the Union argued had resigned before the application filing date and because one moved to Quebec or other had started University. The Board was satisfied that they were not readily available to work due to either geographic limitations or other obligations and therefore had an inadequate connection to the workplace to be considered employed.
Finally, the Board considered an additional issue raised by the Employer in the course of its written submissions, namely whether the workers at issue were actually employees under the Act or “casuals” or “contractors” given the infrequent hours of work and alleged lack of requirement to perform any shifts. In reaching its conclusions, the Board noted and endorsed caselaw which held that the collective bargaining scheme under the Act applies to “casuals” and that “casual, short-term, temporary and probationary employees and trainees should be included in the same unit with permanent employees”. The Board noted that although full-time or part-time work may be relevant to bargaining unit appropriateness, it did not affect a worker’s employee status. The Board further concluded the workers at issue employees were under some obligation to report to fulfill their duties when asked, and that the Employer set wage rates and provided the workers some direction which provided a basis upon which to conclude the workers were, in fact, employees within the meaning of the Act.