COR asks labour board to rescind compliance order

Richard Rabkin

TORONTO — The Ontario Labour Relations Board (OLRB) has reserved judgment in a case that could re-open an issue over whether kosher supervisors, or mashgichim, can be considered management personnel exempt from overtime provisions of the Employment Standards Act (ESA).

Board chair Bernard Fishbein heard arguments last week from the Kashruth Council of Canada, which certifies kosher products under the COR label, and the Ministry of Labour’s director of employment standards.

The Kashruth Council brought a motion asking the OLRB to rescind a March 5, 2014 compliance order by a Ministry of Labour officer that required the Kashruth Council to pay its mashgichim overtime pay. The Kashruth Council argued it should not be bound by the compliance order, because a June 17, 2013, OLRB decision found that mashgichim are part of the organization’s management or supervisory team, making them exempt from the overtime pay requirements of the ESA.

Israel Balter, lawyer for the Kashruth Council, argued the director should be prevented from re-opening an issue that has already been decided.

But Katherine Ballweg, the director’s lawyer, argued that the director was not present at the hearing that led to the June 2013 decision. That hearing was a one-sided presentation of the evidence and should not be relied upon by the OLRB, she said. Ballweg also argued that the ruling was specific to that case and should not affect the subsequent compliance order.

If the OLRB rejects the Kashruth Council’s motion, a new hearing is likely, in which the status of mashgichim will be adjudicated.

The Kashruth Council has long argued that it pays its mashgichim beyond statutory requirements and offers greater flexibility in work hours than is required by law.

However, that hasn’t stopped the Kashruth Council from being subject to labour proceedings involving its employees before. In 2012, an employment standards officer found that the Kashruth Council owed 58 employees more than $10,000 in overtime, vacation pay and other wages. The Kashruth Council settled with all the employees, except three, whom it paid about $140.

The Kashruth Council has argued that it is a religious organization and is exempt from the overtime provisions of the ESA.

A June 2013 OLRB decision, written by vice-chair Tanya Wacyk, recounted some of the legal proceedings involving the Kashruth Council. She noted that a hearing pitting the Kashruth Council against former mashgiach Morley Rand and the director of employment standards, had been split, with the first part held to determine whether the Kashruth Council was a holder of a “religious office”and so excluded from the provisions of the ESA. The OLRB ruled against the Kashruth Council in that part of the case, she stated.

The second part of the case, which looked at whether the Kashruth Council’s mashgichim are supervisory personnel, was held in the absence of the director of standards and of Rand, who gave notice he wouldn’t attend. Rand had asked that Wacyk recuse herself from the case “on the basis of prejudice, personal bias and a lack of impartiality.” Wacyk rejected Rand’s request and heard the case.

Ballweg said she didn’t know why the director didn’t take part in the second part of the hearing. With the Kashruth Council the only party in attendance and giving evidence, Wacyk found that Rand “performed work of a supervisory or managerial character and that pursuant to [ESA regulations] he was not entitled to overtime pay.”

In a statement provided to The CJN by managing director Richard Rabkin, the Kashruth Council said: “Our mashgichim are the lifeblood of our organization… This is why COR pays our mashgichim overtime, and our overtime practices have been found by the Ontario Ministry of Labour to be ‘a greater right or benefit to the employees under the provisions of the act.’

“By treating mashgichim as ‘supervisors’… mashgichim have more flexibility to work additional hours if they so choose, thereby earning more money. 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 better for our mashgichim, for our caterers, and for kosher consumers.”