Archived - Decision: 09-017 Canada Labour Code Part II Occupational Health and Safety

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Case No.: 2007-22
Decision No.: OHSTC-09-017

Maritime Employers' Association Port of Montréal 
Appellant 

and

Longshoremen's Union, CUPE Local 375 
Respondent 

and

Montreal Gateway Terminals Partnership 
intervenor 

May 4, 2009

This case was heard by Appeals Officer Jean-Pierre Aubre.

For the appellant 
André C. Giroux

For the respondent 
Not represented

For the intervenor 
Me Philippe Vachon
Catherine Pronovost

[1] The following decision constitutes the written version of the decision made verbally on April 24, 2009.

[2] This appeal was heard in Montréal by the undersigned Appeals Officer on April 22 and 23, 2009. This appeal had been filed on August 6, 2007 by the Maritime Employers' Association, Port of Montréal, in response to a direction issued on July 9, 2007 under Canada Labour Code, Part II (Code), paragraphs 145(1)(a) and (b) by Health and Safety Officer François de Champlain.

[3] The direction in question directed the appellant to cease contravening subsection 134.1(1) of the Code in terms of the obligation to set up a health and safety steering committee, and ordered it to set up such a committee.

[4] At the closing of the discussions on April 23, 2009, I indicated to the parties present that I was prepared to immediately make my decision on the appeal, subject to drafting the full reasons in support of this decision at a later time, and I rendered the decision verbally on April 24, 2009, as indicated above.

[5] This decision is as follows.

[6] The appeal is allowed, and the direction in question is annulled, the main reason being that the appellant, the Maritime Employers' Association, Port of Montréal, is not an employer that normally has the three hundred or more direct employees that establish its obligation to set up such a health and safety steering committee.

[7] The full reasons in support of this decision will be forwarded to the parties in due time and place.

Jean-Pierre Aubre 

Appeals Officer

Case No.: 2007-22

Decision No.: TSSTC-09-017(R)

Canada Labour Code - Part II
Occupational Health and Safety Tribunal Canada

Maritime Employers’ Association,
Port of Montréal 

appellant 

and
Montreal Gateway Terminals
Partnership
intervenor 


DATE: December 21, 2009

This case was heard by Appeals Officer Jean-Pierre Aubre.

André C. Giroux 

For the appellant

Not represented

For the respondent

Philippe Vachon
Catherine Pronovost
For the intervenor 

[1] This appeal pursuant to subsection 146(1) of the Canada Labour Code, Part II (Code), was made by the appellant on August 7, 2007, against a direction issued on July 9, 2007 by Health and Safety Officer François de Champlain, pursuant to paragraph 145(1)(a) of the Code, and submitted to the appellant on July 16, 2007.

[2] The direction required the Maritime Employers’ Association, Port of Montréal, as an employer subject to the Code for having "more than three hundred employees" to cease contravening subsection 134.1(1) of the Code, and, pursuant to paragraph 145(1)(b), to establish a policy health and safety committee, as required under the Code pursuant to section 134.1 for an employer "who normally employs directly three hundred or more employees".

[3] The appeal was heard over two days in Montréal, on April 22 and 23, 2009, with testimonies by three witnesses: Health and Safety Officer François de Champlain, Jean-Pierre Langlois, Senior Labour Relations Advisor for the Maritime Employers’ Association (MEA) and Stéphane Saucier, Director, Occupational Health and Safety, MEA. Following these testimonies, the appellant and intervenor parties presented their arguments verbally to the undersigned. This was followed on April 24, by a brief session, via conference call, during which the undersigned verbally conveyed his decision to allow the appeal and annul the direction being appealed on the grounds that the appellant, the Maritime Employers’ Association, Port of Montréal, is not an employer that normally employs directly the three hundred or more direct employees required to establish the obligation to set up such a policy health and safety committee.

[4] This verbal decision was confirmed by a brief written decision, dated May 4, 2009, which indicated, in response to the parties’ request, that the more detailed reasons in support of the decision would be provided to the parties in due time and place, following receipt of their written arguments. These arguments were received by the Tribunal on June 17, 2009 (appellant) and September 29, 2009 (intervenor), hence this document.

[5] The direction issued by Health and Safety Officer de Champlain, which is the subject of this appeal, is part of a lengthy series of interventions, actions and reactions, not only by the Labour Program of the Department of Human Resources and Skills Development Canada (HRDC) as well as by the MEA, Port of Montréal, and concerning directly or indirectly the issue of whether, when and how Part II of the Code applies to the MEA as an employer under this Part II. Aside from the interesting aspect of a detailed description of these interventions for a general understanding of the relations between the MEA and the organization mandated to apply Part II of the Code—the HRDC Labour Program—the Detailed Report prepared by Health and Safety Officer de Champlain and presented as evidence under Exhibit S-1 provides sufficient information to understand the basis of the direction:

[Translation]

Detailed Report

On December 6, 2004 Appeals Officer Guénette issued decision 04-046, in which he assessed the employer status of the Maritime Employers’ Association (MEA) vis-à-vis the longshoremen. (R.S.C. 1985, c. L-2).

Following this ruling in which the Appeals Officer confirmed the direction issued by Steve Sirois, the Labour Program (sic), represented by Regional Officer Richard Dupuis, decided to present the impact of the ruling to the different intervenors at the Port of Montréal. This presentation took place on February 13, 2007.
This presentation highlighted its impact on the MEA as employer of the longshoremen.

In accordance with our OPD (Operations Program Directives), on April 4, 2007, Agent Sylvie Gaudreau met with with Stéphane Saucier and Malcolm Macleod to obtain a voluntary compliance undertaking (VCU) 1 whereby the MEA would agree to set up a policy committee for the longshoremen.

On April 23, 2007, the Labour Program found out that the MEA would not sign the VCU, and would request a judicial review of the VCU in question.

Following Sylvie’s departure, I took over the file. Basing myself on the collective agreement, I noted that there were more than 300 longshoremen working at the Port. Pursuant to subsection 134.1(1), the employer (MEA) is therefore required to establish a policy committee. On July 16, 2007, I directed Jean Bédard, then VP of the MEA, to establish a policy committee for the longshoremen.

On August 7, 2008, I received a fax indicating that the MEA was contesting my direction."

[6] Although the above-cited document helps explain the sequence of events leading up to this appeal, it does not mention the fact that between the decision by Appeals Officer Guénette referred to therein and the presentation by the Labour Program to the intervenors at the Port of Montréal, the Guénette decision was submitted for judicial review to the Federal Court and the Federal Court of Appeal, and that in both cases the possibility of having the MEA considered an employer for the purposes of Part II of the Code was discussed and acknowledged, just as it had been by Appeals Officer Guénette. In fact, for a better understanding of the developments following this decision, it is important to remember some of the statements by the two courts. For the Federal Court2, Mr. Justice de Montigny indicated:

49] The applicant maintained that the appeals officer had erred in concluding that from its constitution the MEA was an employer’s organization within the meaning given to that term in the definition of the word "employer" to be found in subsection 122(1) of the Code, even though it was not designated an employer’s organization under section 33 of the same Code. If I understand the applicant’s argument correctly, the fact that section 34 provides the possibility that an employer’s organization like the MEA could be regarded as an employer under section 33. That seems to me to be a misreading of these two provisions.

[50] Section 34 of the Code provides that in the stevedoring industry and in other industries designated by the Governor in Council the Canada Industrial Relations Board may decide that the employees of two or more employers in the same industry constitute a single bargaining unit. In such a case, the Board will require employers to appoint a representative, or failing that, will appoint one itself, and such representative shall be deemed to be an employer for the purposed of Part I.

[51] This special system of certification by industry has the result that employers may be obliged to appoint a representative to act on their behalf even when they do not constitute an employer’s organization to which the Board could attribute the status of an employer under section 33 of the Code. However, the special system clearly does not imply that an employer’s organization cannot be deemed to be an employer for the purposes of Part II.

[52] Moreover, it is worth comparing the definition of the word "employer" in Parts I and II. While the word "employer" is defined in section 3 as "any person who employs one or more employees", section 122(1) defines the same word as "a person who employs one or more employees and includes an employer’s organization and any person who acts on behalf of an employer". The reason for this is obviously that an employer’s organization may only be regarded as an employer for the purposes of Part I in the context dealt with in section 33, whereas there is no provision for such a limitation in connection with Part II.

[53] Consequently, the appeals officer could conclude that and employer’s organization like the MEA is an "employer" for the purposes of Part II.

(…)

[57](…)By not specifying how the appeals officer should identify the employer to whom a notice may be sent when he detects a dangerous situation, the legislature has left it up to him to make this identification case by case, based on his expertise and his assessment of the facts brought to his knowledge. That is exactly what the appeals officer did in the case at bar, based on the fact that the MEA controls the stevedores’ duties. This control is not limited to direct supervision on the spot, but may include other aspects such as the distribution of staff, definition of tasks included in the various classifications, and the taking of disciplinary action.(…)

(emphasis added)

[7] The Federal Court of Appeal 3 for its part, after being asked to review the decision at the first instance quoted at length above, found as follows:

[6] We agree in essence with the remarks by de Montigny J. The MEA is in a hybrid position. Given the fact that in practice it is an employer’s organization for employers of longshoremen whose health and safety are at issue, its status as employer representative for the purposes of the collective agreement signed with the Syndicat des débardeurs, and the undertakings that it makes on its behalf in this agreement in health and safety matters, it cannot be excluded from the application of Part II of the Canada Labour Code.

(emphasis added)

[8] Given that the background to the development of this case is evident from the preceding, we will now move to the specific circumstances of the case at bar.

The Evidence

[9] The first witness heard was Health and Safety Officer de Champlain, whose testimony essentially repeated the points raised in his detailed report, points that are included in paragraph 5 above. This being the case, and given that for the most part the detailed report of Officer de Champlain was not challenged, in part because that party was not present, only additions to the above-mentioned detailed report are reported here. However, Mr. de Champlain confirmed that it was after learning of the MEA’s decision to seek a judicial review of the decision by his colleague Gaudreau to obtain a voluntary compliance undertaking (VCU) from the MEA regarding the establishment of a policy committee at the Port of Montréal, that he decided, with the approval of his employer, HRDC - Labour, in particular his technical advisor Richard Dupuis, to proceed in spite of the fact that the matter was already under judicial review, and to issue the direction that is the subject of this review (sic).

[10] Mr. de Champlain indicated that his employer had given him the "go-ahead" to issue the direction on the policy committee following a presentation made by HRDC - Labour to several intervenors, including the MEA, Port of Montréal, after confirmation of the Guénette decision by both Federal Court instances. This presentation pointed out, among other things, that a policy committee should be established at the Port, and that, pursuant to these decisions, this obligation fell to the MEA, as the employer of the longshoremen. According to Officer de Champlain, this presentation only applied to the Port of Montréal and he did not know what the situation was at Canada’s other ports in this regard. At the time of the issuance of the direction to the MEA, Mr. de Champlain acknowledged that he had met with Stéphane Saucier, who was at that time the Coordinator, Occupational Health and Safety for the MEA. This was one of several meetings, given that these two individuals often met because of their respective functions. At the time of this hearing, Mr. Saucier, who was present, held the position of Director, Occupational Health and Safety, at the MEA. In response to the question from Mr. Giroux as to whether Officer de Champlain remembered telling Mr. Saucier that the "go-ahead" for issuing the direction in question had been given on the recommendation of the lawyers representing Labour Canada before the Federal Court concerning the request for judicial review by the MEA on the matter of the voluntary compliance undertaking (VCU) that had been refused by the latter in order to "short circuit" the request, Mr. de Champlain responded, to the Board’s surprise, "ça se pourrait (it’s possible)" and "ça fait trois ans et ce n’est pas impossible, non (it’s been three years, and it’s not impossible, no)".

[11] In reply to Mr. Giroux for the appellant, Officer de Champlain, indicated that in terms of his education, he has a bachelor’s degree in education and a certificate in administration from Université du Québec à Montréal (UQUAM), as well as an MBA with specialization in health and safety from Université Laval. With respect to his professional credentials, he worked as an advisor to the Centre patronal de santé et sécurité du Québec for three years, and joined HRDC – Labour three years ago. During this period, he was seconded to the position of hazardous goods inspector at Transport Canada for one year, and at the time of this hearing, he had been back with HRDC - Labour for a few months. In response to a question from Mr. Giroux, Officer de Champlain specified that for his MBA, he had taken classes in labour relations, although these did not specifically relate to the issue of determining or defining the employer/employee relationship. Thus, he acknowledged that he was not familiar with every aspect of what constitutes an "employment contract" as opposed to a "service contract", other than to state in general terms that the former involves a relationship with control, including direct orders to the individual, whereas the second, that is to say the "service contract" implies the execution of a task with less control. However, he specified that HRDC - Labour provides its officers with a tool to help them determine an individual’s status as an employee or an independent contractor, or as an employer. This tool, commonly referred to as the IPG (700-5 / Operations Program Directives (OPD) / Interpretation, Policies and Guidelines (IPG)), helped Officer de Champlain as well as Officers Gaudreau and Léger, mentioned in the above-noted detailed report, in determining the employee status and identifying the employer of the auditors and mechanics working at the Port of Montréal. However, in regard to the longshoremen at the Port of Montréal, Mr. de Champlain recognizes that he did not conduct the same type of study in support of his conclusion that they are employees of the MEA for the purpose of establishing a policy committee at the Port of Montréal. He explained that the reason for this is that the courts had already reviewed this issue, and there was therefore no need to once again re-assess what the courts had done.

[12] Finally, Mr. de Champlain acknowledged that he was familiar with the document entitled 907-1 / Operations Program Directives (OPD) / Interpretation, Policies and Guidelines ( IPG ), (English version in Exhibit S-4, French version in Exhibit S-3), the subject of which is: Mandatory Policy Committees, Work Place Committees and Health and Safety Representatives - Part II of the Canada Labour Code. Officer de Champlain specified that he learned of this directive at the start of his training as a Health and Safety Officer, hence at least three years earlier, but that he did not review it prior to issuing his direction. Yet, this document stipulates as one of its goals that it aims to: "establish procedures to ensure consistency and uniformity of application (of the Code) throughout the federal jurisdiction ". The same document, in regard to the policy committees, specifies the following in the English and French versions:

For the purposes of establishing policy committee, an employer’s organization will be categorized by the number of employees that it employs directly and not according to the total number of employees of its member employers, if it belongs to an employers association (sic throughout).

Aux fins de l’établissement des comités d’orientation, la catégorie à laquelle appartient l’organisation d’un employeur sera déterminée d’après le nombre d’employés que cette organisation emploie directement, et non d’après le nombre total d’employés des membres de cette organisation.

[13] The second witness heard was Jean-Pierre Langlois, Senior Labour Relations Advisor to the MEA. For the most part, his testimony involved repeating the information he had provided in his affidavit of May 18, 2007 in connection with the application for a judicial review related to the previously-mentioned VCU. The text of this affidavit is included under Exhibit S-5, and because Mr. Langlois was not cross-examined, most of the contents are reproduced below to serve as his deposition:

[Translation]

…As senior labour relations advisor, I advise MEA staff and employers represented by the MEA on the interpretation and application of the collective agreement and in its bargaining with the defendant union;

The MEA does not load or unload any ships in the Port of Montréal; The different work sites where unloading operations are conducted in the Port of Montréal are entirely under the authority of the different employers that the MEA represents pursuant to its designation as the employer representative;

The different tasks that longshoremen may perform are also fully under the authority of these same employers;

Each of these employers pays the salaries and employee benefits of the longshoremen for the work they do for them, respectively, and they do so through the Centre des données maritimes, which is separate from the MEA;

The MEA receives contributions from the employers it represents to cover its own operations and meet its financial obligations under the collective agreement;

Whereas each of the employers it represents covers the salaries and employee benefits of the longshoremen for the work they do for them, the MEA pays employees for their so-called non-operational time;

For example, many of the longshoremen have job security in the form of a minimum number of paid hours for any given year. If any of them do not reach this minimum under the terms of the collective agreement, they are nonetheless paid up to the minimum, but by the MEA, from a fund set up for the purpose. The money for this fund comes from the contributions made by the previously mentioned employers;

In addition to negotiating, interpreting and applying the collective agreement, the MEA, Port of Montréal also looks after deploying the labour force;

Thus, every day, the different employers represented by the MEA inform it of their labour force requirements for their longshoring operations;

The MEA then deploys the labour force based on the required classifications and staff, pursuant to the collective agreement provisions on the composition of the staff, namely the number of foremen required for each operation;

The employees are informed about their assignment for the following day when they contact the deployment centre run by the MEA;

Once at the work site, employees may be asked by the employer to which they are assigned to carry out all of the duties for which they are qualified, without consulting or informing the MEA;

Under the collective agreement, only foremen and walking bosses, who are included in the bargaining unit, are authorized to give employees directions. These foremen and walking bosses receive their directions from the companies that are represented by the MEA through their superintendants, who are respectively employees of the different longshoring companies;

Whereas the foremen get their assignments on a day-to-day basis, walking bosses are assigned to the different employers operating at the Port on a permanent basis, and the employers have full discretion over their choice of walking bosses and the duration of their assignments;

There is another group of 20 employees among those covered by the certificate held by the CUPE Local 375 (Syndicat des débardeurs), who are permanently assigned as linesmen;

These employees work on rotation, and are on call, and report to work when ships arrive or leave the Port of Montréal;

Whereas in the past, these individuals were employed by a company that has since gone bankrupt, they are now paid by the MEA through the Centre des données maritimes; and

As previously mentioned, the MEA has no authority over the work sites where the longshoremen are assigned or over the tasks they perform there. This authority belongs exclusively to the different companies to which the longshoremen are assigned;

(…)

[14] During his testimony, Mr. Langlois specified that the MEA was set up pursuant to section 34 of Part I of the Code to serve as the representative of those maritime employers, hence as an employer representative, primarily for the purpose of negotiating a collective agreement with the Syndicat des débardeurs (Local 375) and the International Longshoremen’s Association (Local 1657), which are the only two unions in the Port of Montréal. Two collective agreements resulted from this. In the case of Local 375, its members are the staff assigned to loading and unloading in the geographic area of the Port of Montréal, whereas in the case of Local 1657, its members are assigned to audit the seagoing merchandise for that same territory. The auditor group has some 15 different classifications, and the longshoremen’s about 100, some of which are specific to a given maritime employer because of the particularities of the machinery used.

[15] Mr. Langlois briefly described the MEA’s role as follows. On behalf of the maritime employers that mandate it, the MEA negotiates, renews, administers and interprets the collective agreements, looks after the grievance committees, and therefore handles the interpretation grievances, looks after the assignment of longshoremen to the different maritime employers, administers the job security packages and the disciplinary program, and is responsible for the training of the longshoremen and hiring. This association also operates at the ports of Trois-Rivières/Bécancourt, Toronto and Hamilton. It also used to operate at the ports of Québec, Halifax and Saint John. He added that the linesmen are directly employed by the MEA, as mandated by the maritime employers, and the costs related to their functions are directly charged to the users of their services. He specified that the linesmen are unionized longshoremen covered by the same collective agreement as the almost 1,000 longshoremen employed at the Port of Montréal. Mr. Langlois specified that in addition to the 20 linesmen and one longshoreman seconded from the deployment program and seconded to the training centre, the MEA directly employs 46 people full-time and 8 part-time, and that these people are not unionized, are assigned to MEA administrative tasks, and are paid directly by the latter as well as through monies collected based on the tonnage tax. With respect to the training for the longshoremen, Mr. Langlois indicated that under the collective agreement, the longshoremen look after their own training. Consequently, the MEA has been mandated by the maritime employers to provide this training. Thus, the different maritime employers tell the MEA about the different training blocks (e.g. depending on the equipment used). The MEA develops the course plans and prepares the courses after consulting with the training centre staff, submits them for approval by the employers, and then offers the courses through the training centre staff.

[16] As a last point, Mr. Langlois specified that he was not at the meeting between Officer de Champlain and Mr. Saucier, where the direction that is under appeal was issued. However, he added that he met with the Health and Safety Officer on July 18, 2007 to discuss the direction with him, as well as the procedure in view of the judicial review under way regarding the voluntary compliance undertaking (VCU) on the same topic. At the time, he says he was told that the direction had been issued to short circuit the judicial review that was already in place regarding the VCU.

[17] Stéphane Saucier was the second witness called by the appellant. During his testimony on April 23, 2009, Mr. Saucier was the Director, Occupational Health and Safety, at the MEA, Port of Montréal, and had been in that position since January 1, 2008. Prior to that, he had been the Coordinator, Occupational Health and Safety, for the appellant, and had been in that position since April 10, 2001. For his testimony, Mr. Saucier based himself on a long affidavit (23 pages), of which I have a copy (Exhibit S-3), which had been presented in support of the previously mentioned judicial review concerning the voluntary compliance undertaking (VCU), and while he was the Coordinator, Occupational Health and Safety. As a matter of fact, his testimony in this case, which was not subjected to cross-examination for the reasons indicated above, largely corroborates the statements by Mr. Langlois. According to Mr. Saucier, even though the affidavit in question was prepared to support a previous process, the functions described therein as the ones he held in the MEA remained essentially the same at the time of his deposition, even though since March 2008, an assistant health and safety advisor had been assigned to work with him.

[18] Mr. Saucier offered a brief overview of his functions in the MEA. According to him, despite a much more exhaustive description in Exhibit S-3, his role essentially involved coordinating the health and safety activities among the different maritime employers, ensuring a degree of consistency in those activities, in particular by trying to align the practices used or in place, and finally advising his colleagues on occupational health and safety issues for the negotiation of collective agreements. According to the witness, in regard to the consistency of activities and similarities sought in terms of the practices in place among the different maritime employers, his role is essentially limited to an advisory one because he is not in any position to impose anything.

[19] With regard to the requirement under the Code that the employers to which it applies establish local health and safety committees, the witness specified that every maritime employer in the Port of Montréal has established such a committee, as required under the Code, and that provisions have been included in the collective agreements to structure such committees to ensure consistency in the operations of the different maritime employers. Mr. Saucier also added that there was a coordination committee (umbrella committee) at the Port of Montréal for all of the local committees, with a mandate and responsibilities set out in the collective agreement between the MEA and CUPE, Local 375 (Syndicat des débardeurs) essentially aimed at ensuring consistency among the activities of the maritime employers’ local committees. However, he noted that under the collective agreements, the coordination committee, which comprises representatives of the maritime employers and of the employees in the different sectors, only has authority to make recommendations, so the maritime employers retain their decision-making authority for occupational health and safety. With regard to workmen’s compensation, Mr. Saucier indicated that the MEA was not involved, that every maritime employer has to contribute individually to the Commission de Santé et Sécurité du Travail du Québec (CSST), and that this contribution is calculated differently depending on the employer’s experience and records. To support his statements, Mr. Saucier provided and commented on Exhibit S-8, which I also have. This is a collection of documents and sworn statements from most, if not all, of the maritime employers at the Port of Montréal, which corroborate the statements by Mssrs. Langlois and Saucier, and the latter’s description of the employers as paying contributions to the CSST in the event of employment injuries.

[20] Referring to the previously mentioned Federal Court and Federal Court of Appeal decisions that acknowledge the MEA as an employer at the Port of Montréal, Mr. Saucier noted that he wanted to meet with representatives of the Labour Program to find out what would be their approach or direction regarding longshoremen at the Port of Montréal following these rulings. In December 2006, he (OHS Officer Léger) was supposedly told that consultations would be taking place to discuss the ensuing new approach. However, according to the witness, no such consultation on developing the new approach actually took place, other than a meeting at the MEA offices to give representatives an advance briefing prior to the official announcement. At that meeting, Mr. Saucier pointed out that the MEA had strongly opposed several aspects of the new direction, particularly the fact that it would make the Port of Montréal a unique case, whereas the ports of Halifax, Trois-Rivières, Vancouver, Toronto and Hamilton would be treated differently. According to the witness, at the presentation by the Labour Program representatives on February 13, 2007 on the new approach, under which at the Port of Montréal the MEA would be the employer, it became obvious that their observations had not been taken into consideration. Mr. Saucier also pointed out the longshoring operations were split between those taking place on the docks, which fall under the mandate of the health and safety officers attached to HRDC – Labour, and those taking place on the ships, which fall under the mandate of Transport Canada OHS agents, and that further to a directive from this department, Transport Canada officers who once gave directions to the individual maritime employers, now issued their health and safety directions under the Code to the MEA alone.

[21] The witness met with Health and Safety Officer Sylvie Gaudreau at the appellant’s offices on April 4, 2007. At that time, Officer Gaudreau gave him a request for a voluntary compliance undertaking (VCU) that, as previously mentioned, the MEA would set up a policy committee pursuant to section 134.1 of the Code, indicating that this stemmed from the previous decision by Appeals Officer Guénette (supra), as well as from the ensuing Federal Court and Federal Court of Appeal decisions. Officer Gaudreau also indicated at that time that henceforth there would have to be only one policy committee at the Port of Montréal, that the employer would only be represented on it by the MEA, that the representatives of the different longshoring companies would not, although they could play an observer role, and that all local health and safety committees would have to be reconstituted so that only the MEA would play the employer role, and again, the different longshoring companies would only be observers. According to the witness, in explaining this approach, Officer Gaudreau pointed out that it would be much simpler for HRDC – Labour if it only had to deal with one employer, regardless of the circumstances. As previously indicated, further to the MEA’s refusal to accede to this VCU request, the appellant asked the Federal Court for a judicial review of the matter, and a decision was rendered by the Court in December 2008. However, the witness pointed out, on July 16, 2007, long before this decision came down, Health and Safety Officer de Champlain issued the direction to the MEA to establish a policy committee at the Port of Montréal that is the subject of this appeal. According to Mr. Saucier, on July 18, 2007, at a meeting with Officer de Champlain and Jean-Pierre Langlois, the Agent was asked why the direction had been issued at that particular time, to which Mr. de Champlain responded that it had been done under the order of the HRDC-Labour lawyers in an effort to short circuit the MEA’s case before the Federal Court given that, contrary to a request for a VCU, a formally issued direction could not be ignored.

Arguments

Appellant

[22] Briefly stated, the appellant’s arguments are based on the following four points. First, based on the elements filed as evidence to characterize the working relations between the longshoremen, foremen and walking bosses at the Port of Montréal with the different maritime employers and with the Maritime Employers’ Association, which gets its mandate, if not authority, from these maritime employers, it is to be determined that based on the traditional criteria for determining the employer/employee relationship, the different maritime employers are and remain the employers of these longshoremen, foremen and walking bosses, except, of course, for the longshoremen, linesmen and other individuals hired directly by the MEA to carry out the role assigned to it pursuant to section 34 of the Code.

Second, the interpretation of certain legislative provisions in Part I and Part II of the Code, in particular the definitions of employer in these two parts, as well as sections 33 and 34 in Part I, suggest that through a legal manoeuvre, that some would call fiction of law, the employer/employee relationship can be shared between the MEA and the maritime employers according to the particular obligations, functions and circumstances invoked in each case. This is what the Federal Court and the Federal Court of Appeal found when they determined that we had to proceed on a case by case basis in identifying the employer of the longshoremen and others by qualifying the MEA’s position as hybrid.

Third, the direction to the MEA to establish a policy committee was issued on the understanding that the MEA would be the only employer of the longshoremen and others at the Port of Montréal, which, first of all, does not meet the requirement formulated by the Federal Court to conduct a case by case analysis, and second does not even meet the HRDC-Labour policy (OPD) regarding the uniform and consistent application of the Code, given that the approach used at the Port of Montréal is unique compared to the other ports in Canada.

Fourth, considering the evidence presented in connection with the work of the longshoremen, and applying the points raised by the two federal courts in connection with the wording of section 134.1 of the Code, which not only provides that there must be an employer, but that this employer must normally directly employ 300 or more employees, the only reasonable conclusion is that the MEA does not normally directly employ the minimum required number of employees, and is therefore not required to establish a policy committee, and that the direction issued to it to this effect is therefore unjustified.

[23] In other words, Mr. Giroux, speaking for the appellant, started by pointing out that the issue raised in this appeal is whether the Maritime Employers’ Association is an employer subject to section 134.1 of the Code in light of the fact that based on a previous decision by Appeals Officer Guénette regarding this same association, the Federal Court and the Federal Court of Appeal found that the MEA could, under certain circumstances, be considered to be an employer under Part II of the Code. According to Mr. Giroux, the answer to this question calls for a careful look at the quality of the MEA’s employer representation, in order to determine that it cannot be considered an employer in the usual or traditional sense of the term. In so finding, it would therefore become necessary to review this quality of employer, which was legislatively created, on a case by case basis, in light of the particular circumstances of the MEA in each case, taking into consideration the fact of the requirement of a uniform application of the legislation and, consequently, of the limited meaning and scope, according to its own statements, that could be given to the pertinent provisions of the part of the act that apply more directly to this case, i.e. Part II of the Code, and its definition of the term "employer", which integrates the concept of an employer organization.

[24] Hence, as Mr. Giroux pointed out, the Maritime Employers’ Association is an association of employers, that was designated, namely at the Port of Montréal, as the employer representative pursuant to section 34 of Part I of the Code. The legislative creation of this designation, by and as a result of what is referred to as geographic certification, aimed to address the significant issues that, at one time, marked labour relations in longshoring in Canada, in particular in the ports along the St. Lawrence. Unlike the traditional union certification, whereby a union represents the employees of a single employer, geographic certification provides that a single union will represent all of the employees of the employers at a given port. The impact of this kind of union certification is the designation, whether voluntary or imposed, of a representative for all employers at a given port as the employer representative, which thereby becomes assimilated with an employer, and required to meet the obligations imposed on an employer under Part I of the Code, and attributed all of the required authorities in this regard, including the authority to sign a collective agreement on behalf of its constituent members. In brief, therefore, the MEA would not be, in and of itself, an employer to the employees of its constituent parts, but because of a fiction of law, would have to act as such to meet the statutory requirements.

[25] In light of the provision in the Code for the establishment of policy committees, that is to say section 134.1, the appellant’s lawyer compared the texts of the section in both official languages, highlighting that the obligation to establish such committees applies to every employer "who normally employs directly three hundred or more employees " - "qui compte habituellement trois cents employés directs ou plus"--, with the Operations Program Directives (Exhibit S-3). These Directives, in section 8.1, provide that "for the purposes of establishing policy committee, an employer’s organization will be categorized by the number of employees that it employs directly and not according to the total number of employees of its member employers if it belongs to an employers association (sic throughout)" - "qu’aux fins de l’établissement des comités d’orientation, la catégorie à laquelle appartient l’organisation d’un employeur sera déterminée d’après le nombre d’employés que cette organisation emploie directement et non d’après le nombre total d’employés des membres de cette organisation." On this basis, the lawyer notes that the Labour Program, through its representatives – the health and safety officers, must, when determining whether or not a policy committee needs to be established, determine which of the different longshoring companies or the MEA must be considered as the employer of the longshoremen, rather than systematically adopting and applying a policy whereby the MEA is designated the only employer of the longshoremen at the Port of Montréal, thereby making the Port of Montréal a unique case, contrary to its own Operations Program Directives "to ensure that the legislation and regulations are applied consistently and fairly" and "to establish procedures to ensure the consistency and uniformity of application throughout the federal jurisdiction".

[26] Mr. Giroux adds that for the purpose of discharging its obligations under Part I of the Code in light of its designation as employer representative in different ports across Canada, the MEA itself directly employs a certain number of employees, 54 according to the lawyer. This groups includes Mssrs. Saucier and Langlois, who testified at this hearing, a certain number of labour relations officers, administrative staff, and 20 longshoremen who work as linesmen, and for which the MEA became responsible following their previous employer’s bankruptcy. The group of employees also includes another longshoreman who is permanently assigned to the Centre de formation, and the training is given by longshoremen as required under the collective agreement, which makes these longshoremen direct employees. With regard to the workers who make up this group, Mr. Giroux indicates that the MEA does not contest that it is the employer for the purposes of all three parts of the Code. However, in terms of the other longshoremen, the MEA’s position is that it is not their employer for the purposes of Part II of the Code in every respect, which does not, in some respects, exclude the fact that further to a case by case study it could be considered as such. This having been said, Mr. Giroux states that at no time did the MEA have as many as 300 direct employees.

[27] Mr. Giroux closed his arguments by referring to the text of section 134.1 of the Code in light of the preceding. According to him, it suffices to read the text of the Act, specifically section 134.1, to realize that the MEA is not subject to that section. In addition, according to him, reading the Labour Program policies and directives (Exhibits S-2 and S-3) clearly reveals that the Labour Program’s interpretation in Montréal of section 134.1 is not only incorrect, but contrary to the policies and directives that govern this matter by applying the act consistently and fairly. Besides the fact that the MEA, according to the evidence, does not normally directly employ 300 or more employees, the new approach adopted in the region for the Port of Montréal overlooks the instructions of the Federal Court and the Federal Court of Appeal that the employer must be determined on a case by case basis. In this light, Mr. Giroux indicates that other than the previously mentioned group of direct employees, in whose case the MEA, as employer, is subject to the obligations set by Part II of the Code, it also meets the definition of employer under section 122 of the Code when it acts on behalf of one of the employers it represents in terms of the obligations set in Part II in response to the case by case review requirement formulated by the Federal Court. However, according to the lawyer, this would not suggest that the MEA, because of its authorities under section 34 of the Code, would, for all legal purposes, be the employer of the longshoremen within the meaning of Part II of the Code because some of the provisions in the collective agreement it signed on behalf of the maritime employers with the longshoremen’s union concern the health and safety of employees.

[28] In conclusion, the rule to be applied, and which was stated by both federal courts, is that the employer’s identification for the purpose of an obligation under the Code must be based on the particular circumstances of that employer, hence case by case. On this basis, Mr. Giroux contends that it is incontestable that the MEA is not an employer subject to section 134.1 of the Code.

Intervenor

[29] The intervenor’s arguments were presented verbally at the hearing by Ms. Pronovost and in writing by Mr. Vachon. In both cases, the arguments can be summed up to say that the intervenor is fully in agreement with and endorses the appellant’s arguments presented by Mr. Giroux. In this regard, the intervenor seconds the appellant’s statements regarding the background to labour relations in the longshoring industry and the origins of the special arrangements for geographic certification under Part I of the Code, in the same breath confirming that under these particular circumstances concerning the working arrangements, the MEA is considered an employer for the purposes of Part I of the Code, and the individual maritime employers retain their obligations and responsibilities under the Code.

[30] According to the intervenor’s lawyers, the following conclusions emerge from the evidence:

  • the direction issued by Health and Safety Officer de Champlain stems from a poor understanding of the organization of the work at the Port of Montréal, and from a flawed interpretation of the facts, the law and the applicable principles.
  • the evidence clearly demonstrates that the direction was issued based on an incorrect interpretation of the Federal Court’s position that the determination of employer status must be done on a case by case basis, and consequently did not comply with the new direction of HRDC – Labour stemming from this position.
  • thus, the issue of establishing a policy committee did not receive the careful analysis it merited.
  • it was clearly demonstrated that the MEA does not normally employ directly the 300 employees required to be obligated to establish a policy committee.
  • the intervenor has always had its employer status under the Code, and in this regard the organization of work at the Port of Montréal demands that the longshoring company remain front and centre in managing the health and safety of this employees. To this end, the longshoring companies at the Port of Montréal, including the intervenor, assume their obligations as employers of the employees assigned to their operations.

Decision

[31] My conclusion in this case is already known to the parties because I shared it with them verbally at the close of the hearing on April 24, and subsequently in a brief decision dated May 4, 2009. All that remains is an explanation of the reasoning that led the undersigned to this conclusion, given that in my opinion, the direction under appeal in this case should never have been issued. I am definitely of the view that a simple careful reading and interpretation of the legislative provisions applicable to this case by the issuer of the direction under appeal or by the individuals to whom he reports, individuals who by all accounts are aware of the law, in particular of the interpretation given by the courts of the Code and its applicable provisions, specifically in connection with the MEA, would have led to a different decision. The fact of having gone ahead all the same with issuing the direction, whether or not this decision was made freely or pursuant to some directive, attests amply to the relationship between the MEA, the Port of Montréal, and the organization in charge of applying the Code, in particular its Part II, in this regard.

[32] This having been said, and given that I have indicated my view that a careful and considered interpretation of the applicable provisions in the Code, applied to the circumstances pertaining to the MEA, the Port of Montréal and the longshoremen working there, leads to the conclusion that I have already expressed, and to the decision to allow the appeal and annul the direction in dispute, I shall now proceed with this analysis. It is important to specify at this point that this analysis complies with the statutory rules of interpretation under the Interpretation Act (R.S.C. 1985, c. I-21), in particular sections 10 and 12, which read as follows:

10. The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirits, intent and meaning.

The expression "always speaking" implies that meaning must be given to every term in a legislative provision in interpreting the law. Section 12, entitled "Enactment deemed remedial", reads as follows:

12.-Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

[33] I made some time for the above two rules of interpretation before moving on the issue under review for the simple reason that the direction in this case, which occurred in the absence of one of the parties involved, largely addressed the broader issue of the designation of the MEA as employer, or not, of the longshoremen at the Port of Montréal before returning to the more specific issue of whether or not there was a direct employment relationship between the MEA and the longshoremen doing their work at the different maritime employers at the Port of Montréal in connection with the issue of whether the MEA was required to establish a policy committee pursuant to section 134.1 of the Code. Thus, it seems important to me to point out that my interpretation of the provisions in the Code that pertain to this concept of employer takes these two rules into consideration.

[34] The appellant largely based its argument on the fact that the jurisprudence has determined that the MEA is not and cannot be seen as the longshoremen’s employer in every case, that this designation calls for an analysis of the specific circumstances of each situation invoked, and that this designation must be determined on a case by case basis because of the specific nature of longshoring. Health and Safety Officer de Champlain issued his direction to the MEA based on the position apparently held by HRDC – Labour that the MEA is the only employer of the longshoremen in the Port of Montréal. Yet, before considering the MEA’s designation in connection with section 134.1 regarding the policy committee, it is important to review how an association of longshoring companies (the maritime employers) in principle acting separately and independently from one another, and to which the longshoremen individually provide their services in the areas controlled by these companies (their property), which provide the tools, formulate the work directives and pay their work, can end up grouped and consolidated into one single employer to the longshoremen from several regions or sectors combined into a single union.

[35] According to the testimonies provided, and the Board’s referral by the appellant to the decision by the Canada Industrial Relations Board in International Longshoremen’s Association, local 1739, et al./em> (45 di 314), it has been established that in the 1980’s, because of the continuous difficulty in organizing the work and managing labour relations at the Port of Montréal and other ports, the federal legislator introduced a specific system of union certification, which came to be known as the geographic bargaining certificates system, and which specifically targeted the longshoring sector. The details of how this system works need not be laid out here in detail, other than perhaps to refer to section 34, Part I of the Code, which specifies that the Board "may determine that the employees of two or more employers (…) constitute a unit appropriate for collective bargaining", which indicates that even at the outset the longshoremen were employees of different maritime employers. In combining the longshoremen in a given sector or geographic area into a single bargaining unit, the legislator also realized that with regard to the negotiation of collective agreements and labour relations, the employee/longshoremen combined into a single bargaining unit had to deal with a body that combined all of the maritime employers in a given sector or region. Subsection 34(3) of the Code thus provides that in the case of a geographic bargaining certificate, the Board will order the different maritime employers to choose a representative to constitute the unified and single counterpart to the unified employees/longshoremen. For the Port of Montréal, this accounts for the creation of the Maritime Employers’ Association, the appellant in this case. In regard to this body combining the employers, the legislator also ensured their collective authority as employer by providing through what I shall refer to as a fiction of law, that for the application of Part I of the Code (Industrial Relations), the representative in question, in this case the MEA, is deemed to be an employer and required to execute on behalf of its constituent members, all of the obligations of an employer under Part I of the Code for the collective bargaining process at the Port of Montréal. However, returning to the issue raised in this appeal, does this fiction of law under section 34 make the appellant an employer within the general meaning of Part II of the Code, and more specifically under section 134.1 of the Code, thereby creating the obligation to establish a policy committee? At this point I think it is important to note that this fiction of law is an exception to the rules normally governing the determination of the employer/employee relationship, and therefore must be given a narrow interpretation.

[36] The Federal Court and the Federal Court of Appeal have addressed this question, at least in regard to the more general issue of whether the MEA can be considered an employer for the purpose of Part II. I already referred to the pertinent sections in the judgments by these two courts at the beginning of this decision. However, for clarity, I believe it is useful to repeat them here. However, before I do, I would like to look at the definition of the term "employer" in Part II of the Code.

[37] Subsection 122(1) defines, for the purposes of Part II, the term "employer" as follows, in English and French:

"employer"-means a person who employs one or more employees and includes an employers’ organization and any person who acts on behalf of an employer

"employeur"-Personne qui emploie un ou plusieurs employés--ou quiconque agissant pour son compte—ainsi que toute organisation patronale.

(emphasis added)

First of all, it should be noted that this definition, in both languages, uses the verb "employ/employer", which has a very specific meaning in English as in French. According to the Canadian Oxford Dictionary, "to employ" is to "use the services of (a person) in return for payment", whereas the Petit Larousse Illustré defines "employer" as "faire travailler pour son compte".

In addition, the two definitions contain the expression "employers’ organization / organisation patronale", in Part I of the Code for the designation of such by the Canadian Industrial Relations Board (section 33) of the entity selected to represent the maritime employers in a geographic sector in connection with a geographic bargaining certificate. Given that Part II of the Code, at the above definition, uses the expression "employers’ organization" from Part I without providing a different definition or applying any particular restrictions to it, it would be reasonable to give it the same meaning as in Part I in view of the rules of interpretation whereby the same words are given the same meaning in a given act (the Code being a single act with three parts), and we could ask ourselves whether the MEA, as an association of maritime employers established as a single "representative" for a geographically certified union, could be seen as an "employer organization" within the meaning of the definition of "employer" including this expression, in the absence of such a designation to this effect or even the evidence that such a designation now exists. However, we will see below that the Federal Court, in the absence of such constraints to Part II of the Code, has chosen to consider the MEA as a de facto "employer organization", thereby importing into the definition of "employer" the fiction of law created by the application of sections 34 and 33 of Part I of the Code.

In light of the preceding, we could wonder how, given such a fiction of law, the longshoremen performing their functions at the request of a maritime employer, on a site controlled by this maritime employer, with equipment provided by this maritime employer and following directions issued by that employer, which pays for their services through a centralized plan/organization, can be considered employees of the MEA. The Federal Court and the Federal Court of Appeal answered this question by specifying that this had to be determined on a case by case basis, hence according to the individual and particular circumstances of each case, thereby recognizing the possibility of sharing the nature of employer. Although quoted at the beginning of this document, it is useful to repeat both courts’ views on this point.

[38] In Maritime Employers’ Association v. Canadian Union of Public Employees, Local 375 (Syndicat des Débardeurs) (supra), Mr. Justice de Montigny stated:

[50] Section 34 of the Code provides that in the stevedoring industry and in other industries designated by the Governor in Council the Canada Industrial Relations Board may decide that the employees of two or more employers in the same industry constitute a single bargaining unit. In such a case, the Board will require employers to appoint a representative, or failing that, will appoint one itself, and such representative shall be deemed to be an employer for the purposed of Part I.

[51] This special system of certification by industry has the result that employers may be obliged to appoint a representative to act on their behalf even when they do not constitute an employer’s organization to which the Board could attribute the status of an employer under section 33 of the Code. However, the special system clearly does not imply that an employer’s organization cannot be deemed to be an employer for the purposes of Part II.

[52] Moreover, it is worth comparing the definition of the word "employer" in Parts I and II. While the word "employer" is defined in section 3 as "any person who employs one or more employees", section 122(1) defines the same word as "a person who employs one or more employees and includes an employer’s organization and any person who acts on behalf of an employer". The reason for this is obviously that an employer’s organization may only be regarded as an employer for the purposes of Part I in the context dealt with in section 33, whereas there is no provision for such a limitation in connection with Part II.

[53] Consequently, the appeals officer could conclude that and employer’s organization like the MEA is an "employer" for the purposes of Part II.

(…)

[57] (…) By not specifying how the appeals officer should identify the employer to whom a notice may be sent when he detects a dangerous situation, the legislature has left it up to him to make this identification case by case, based on his expertise and his assessment of the facts brought to his knowledge. That is exactly what the appeals officer did in the case at bar, based on the fact that the MEA controls the stevedore’s duties. This control is not limited to direct supervision on the spot, but may include other aspects such as the distribution of staff, definition of tasks included in the various classifications, and the taking of disciplinary action.(…)

(emphasis added)

[39] The Federal Court of Appeal upheld the decision of de Montigny J., cited above. However, it is important to mention that in so doing, the Court noted in its decision that de Montigny J. had applied the standard of review of "patent unreasonableness", whereby a great deal of deference should be granted to the conclusions submitted for judicial review. However, recent jurisprudence has brought back the standard of review of "reasonableness", and it is worth asking whether either of the courts would have reached the same conclusion with the new standard. Be it as it may, the Federal Court of Appeal (supra), through Mr. Justice Décary, concluded the following:

[5] The MEA sought a judicial review of appeals officer Guénette’s decision. Mr. Justice de Montigny, of the Federal Court, dismissed the application (2006 FC 6). He stated that in his opinion the appeals officer’s findings "must be treated with the greatest deference" and that "error must be obvious for it to entail quashing his decision" (paragraph 47). He applied the standard of review of "patent unreasonableness" and determine that the impugned decision did not meet this stringent standard.

[6] We agree in essence with the remarks by de Montigny J. The MEA is in a hybrid position. Given the fact that in practice it is an employer’s organization for employers of longshoremen whose health and safety are at issue, its status as employer representative for the purposes of the collective agreement signed with the Syndicat des débardeurs, and the undertakings that it makes on its behalf in this agreement in health and safety matters, it cannot be excluded from the application of Part II of the Canada Labour Code

[40] In view of the preceding, we could therefore submit that in regard to using the services of the longshoremen, the legislator has allowed for the establishment of an employment regime, the use of longshoremen, which is adapted to the particular character of the longshoring industry, and acknowledges its reality. The Federal Court and the Federal Court of Appeal confirmed as much through the simple acknowledgement that the designation of employer must be done on a case by case basis, according to the roles and obligations that come into play or that have to be discharged under the circumstances specific to every situation. Hence, and I share this opinion, we must consider that the MEA, from the longshoremen’s perspective could be seen as the employer under certain circumstances, whereas under other circumstances, the individual maritime employers hold this title. From my point of view, this is what the Federal Court of Appeal means when it refers to the functional nature of the MEA as hybrid, and as far as I am concerned this does not change its own quality of employer towards its own contingent of employees (approximately 54) that it needs to carry out the functions which it is attributed through its characterization as an employers’ organization. However, I would add that beyond this characterization of the MEA, the effective assigner of work inasmuch as it determines on a day to day basis its needs for longshoremen in its establishment, places its order with the MEA, ensures that the work is carried out with the equipment it provides in principle in an area that it controls, for which it assumes the cost, remains the maritime employer. Consequently, from certain points of view, this being the appellant’s position, the maritime employer is the one who should be seen as, and in reality is, the employer, whereas from other points of view, and through the effect of this fiction of law stemming from the geographic certification and applied to Part II, the MEA becomes that.

[41] In light of the preceding, it is particularly easy to address the specific issue raised by this appeal. The text of section 134.1, which sets out the obligation to establish a policy health and safety committee, reads in part as follows, in both English and French versions:

134.1(1)-For the purposes of addressing (…) every employer who normally employs directly three hundred or more employees shall establish a policy health and safety committee….

134.1(1)-L’employeur qui compte habituellement trois cents employés directs ou plus constitue un comité d’orientation….

(emphasis added)

[42] At paragraph 37 above, the definition of "employer/employeur" was reviewed in terms of the meaning to give the verb "employ/employer", which comes down to the concept of services provided to an employer by an employee. If we take the French text of section 134.1, we see the obligation stated in terms of an employer who "compte", (which translates into "has") employees, whereas the English text uses the formula in the definition of "employer", that is to say and employer "who employs". In my opinion, this does not affect the meaning that is to be given to the obligation, since in both versions the obligation is given as the employer’s obligation, and the term "employer" is clearly defined in subsection 122(1) of the Code in the sense of employing, that is to say in an employment relationship intended to provide services.

[43] If we were to limit ourselves to this simple analysis, in view of the preceding concerning the designation of the MEA, we might be tempted to conclude that the obligation to establish a policy committee applies to the MEA as the representative of the maritime employers at the Port of Montréal under section 33 of the Code. However, the terms "direct" and "normally" give this obligation a different hue. Indeed, the term "direct" is defined in the Oxford Canadian Dictionary as meaning "without intermediaries or the intervention of other factors", and "normally" is explained as "in a normal manner, usually", and the French terms are defined in the same manner. In this case, the evidence indicates that the MEA, in and of itself, has approximately 54 employees (not counting the linesmen), and that the Port of Montréal has approximately 1,000 longshoremen, whom the MEA is responsible for deploying among the different maritime employers based on the needs posted by these employers through the regime for the deployment and allocation of staff on site. In my opinion, there is no doubt that the longshoremen provide their services directly to the different maritime employers, and this at all times, that is to say "normally". In this regard, the MEA stands as an intermediary, not as a direct employer, except for its own employees. Given that the MEA does not "normally employ directly" the required number of employees to justify the establishment of a policy committee, it goes without saying that it is not obliged to do so.

[44] Consequently, I can only reiterate the decision that has already been given, that the direction under appeal is annulled on the grounds that the appellant is not an "employer who normally employs directly three hundred or more employees" that would thereby be required to "establish a policy health and safety committee".

Jean-Pierre Aubre

Appeals Officer


Notes

[1] Return to footnote 1 VCU - An administrative measure, not addressed under the Code, that is used to obtain the voluntary undertaking by one party to comply with certain obligations under the legislation.

[2] Return to footnote 2 Maritime Employers’ Association v. Canadian Union of Public Employees, Local 375, 2006 FC 66, paragraphs 49 to 53 and 57.

[3] Return to footnote 3 Maritime Employers’ Association v. Canadian Union of Public Employees, Local 375 (Syndicat des débardeurs),2006 FCA 360, paragraph 6.

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