Inquiry on COR pay policy can proceed, OLRB rules

Richard Rabkin

TORONTO — The Ontario Labour Relations Board (OLRB) has turned down a preliminary application by the Kashruth Council of Canada (COR) that would have ended an inquiry into the kashrut agency’s overtime pay practices for its mashgichim.

The decision means the case can now proceed to a hearing by the OLRB to be decided on its merits – whether COR’s mashgichim, or kashrut inspectors, are exempt from provisions of the Employment Standards Act (ESA) because they are rightfully considered managerial or supervisory personnel, or whether COR compensates its mashgichim beyond the requirements of the ESA.

The case arose out of a November 2013 inspection by a Ministry of Labour employment standards officer (ESO) and a March 2014 ministry compliance order relating to the overtime and hours of work of the mashgichim and the records kept by COR. The ESO found that COR did not pay its mashgichim overtime pay as required by the ESA.

OLRB chair Bernard Fishbein rejected arguments from COR that a previous decision of a board vice-chair had already decided the issue in a case involving former mashgichim Morley and Michael Rand. In that case, known as the Wacyk decision, the OLRB vice-chair ruled that COR’s mashgichim were managerial or supervisory personnel, and so not subject to the ESA’s overtime provisions.

The Wacyk decision was the second of a two-part hearing. In an earlier ruling, known as the Maclean decision, another OLRB vice-chair ruled that COR could not consider the Rands holders of religious office, which would also have exempted COR from the provisions of the ESA. Neither the Rands nor the director of employment standards – a representative of the Ministry of Labour – attended the Wacyk hearing.

COR had relied on the Wacyk decision to argue the OLRB had already adjudicated the same issues involved in the March 2014 compliance order.

However, Fishbein said the legal basis for that position, which turned on the principle known as issue estoppel, had not been made out. Furthermore, he declined to exercise his discretion in favour of the council. Despite the fact that the director of employment standards had decided not to participate in the board’s hearing on the question of whether a mashgiach is managerial, it cannot be bound by that decision, he ruled.

“Just as the board made explicit in the McLean decision that it was dealing only with the Rands on the question of holders of religious office, I am not prepared to conclude that the Wacyk decision should be extended to all mashgichim.”

Turning to the absence of the director at the Wacyk hearing, Fishbein said the Wacyk decision made “a far-reaching conclusion that may impact many other provisions of the ESA. It is not difficult to conceive of that issue arising in a different context, not involving the [Kashruth] Council, where the board refuses to adopt such an approach… Would all security, police, quality control, audit staff be managerial and supervisory within the meaning of the ESA? If that should occur, the interpretation of the ESA and its exemptions would have changed.”

“In any event,” Fishbein continued, “I believe that the result of the Wacyk decision is worthy of re-examination in the light of a fully argued and contested hearing… In the case of public protection and remedial legislation such as the ESA, and a conclusion about the scope or true meaning of the managerial or supervisory exclusion, which has such wide implications, I believe that issue ought to be thoroughly examined by the board.”

Responding to the board’s decision, Richard Rabkin, managing director of COR, said, “The Kashruth Council of Canada will be proceeding with the previously scheduled hearing.”

He said COR will advance the position that the mashgichim are managerial or supervisory in nature and alternatively, ask “whether the overtime policy of the Kashruth Council offers a greater right or benefit than that provided by the ESA and would, therefore, govern, as the OLRB previously determined. 

“We will be proceeding with our position at the board in reliance on its previous decision, because our method of overtime payment, which has been recognized by the board as more generous than the minimum guidelines set out in the statute, is overwhelmingly preferred by our mashgichim, and is better for our caterers and for kosher consumers,” Rabkin stated.