- May 24, 2021
- Certifications/Decertifications
Application for certification. The local sought to represent the theatre’s stage employees. The only dispute between the parties was whether the stage employees were employees or whether they were independent contractors within the meaning of the Act. The Board considered the jurisprudence and applied a list of factors, which, alone or in combination, assist in determining whether a person is an independent contractor: (1) The use of, or right to use substitutes; (2) Ownership of tools, equipment, etc.; (3) evidence of entrepreneurial activity; (4) the selling of one’s services to the market generally; (5) economic mobility or independence; (6) evidence of some variation in the fees charged; (7) whether the individual can be said to be carrying on an “independent business”; (8) the degree of specialization; (9) control of the manner and means of performing the work; (10) the magnitude of the contract amount, terms and manner of payment. Applying these factors, the Board found that the stagehands were not independent contractors. While the stagehands supplied some of their own tools, they also worked with the tools provided by the theatre. None of the stagehands exhibited the traditional indicia of entrepreneurial activity. They did not incorporate businesses to carry out the stage hand work; nor did they have business cards or advertise their services. While some of the stagehands performed work for other organizations, such work was only occasional (the majority of their time was spent working for the theatre). It could not be said that the stagehands were carrying on an “independent business” on their own behalf. Rather, they supplied their labour on an as needed basis to assist in the theatre’s enterprise of staging productions. While they exercised some degree of independence as skilled workers, they were subject to the control of management. Although the theatre made no deductions from the stagehands’ wages, nor did the stagehands invoice or bill the theatre. Finally, the casual or occasional nature of the relationship between the theatre and the stagehands did not preclude a finding that the stagehands were employees.