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Wednesday, August 27, 2014

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Labour ministry rules mashgichim employees

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TORONTO — The Ontario Labour Relations Board has ruled that two former kashrut supervisors were employees of the Kashruth Council of Canada and therefore entitled to overtime and travel time according to the terms of the Employment Standards Act (ESA).

As reported in The CJN in August, the Kashruth Council, which oversees the COR certification, had asserted that the role of mashgiach is a “religious office,” meaning the ESA would not apply. The exemption allows clergy to work long, irregular hours without necessarily being compensated on a per-hour basis.

Morley Rand and his son, Michael Rand, both former COR mashgichim (supervisors), petitioned the Ministry of Labour to be paid in accordance with the ESA for overtime and travel time. They oppose current compensation practices that the Kashruth Council insists are “over and above the legal standards.”

Ontario law generally requires overtime after an employee has worked 44 hours in a single week. In 2008, the Kashruth Council began paying time and a half for public holidays and shifts over ten hours. This means, as Morley Rand told The CJN in August, that mashgichim sometimes work up to 60 hours a week without overtime, as long as no shift lasts a minute longer than 10 hours. Rand was employed by The Kashruth Council for 23 years.

OLRB vice-chair Brian McLean applied precedents in Quebec and the United States to determine the role of the mashgiach, as well as to determine the Rands’ relationship with the Kashruth Council.

In this case, McLean wrote, “While they have some freedom in how they carry out their respective functions, there is also oversight – both from an employment perspective and a religious perspective – which lead me to conclude they are not religious office holders.” For instance, the Kashruth Council assigned mashgichim to work with particular clients, meaning the Rands had no say in where they would work.

The decision doesn’t rule out the possibility that some mashgichim could indeed be considered religious office holders, but it unequivocally rules that in the Rands’ case, the ESA should apply.

Previously, the Kashruth Council had stated that “the mashgiach is the supervisor and authority on all kosher matters in the establishment” as proof of the spiritual nature of the job. But McLean wrote that the centrality of kashrut in Judaism “cannot transform individuals who are described as employees, directed and treated like employees, paid and engaged as employees, into the holders of religious office.”

The Kashruth Council, which employs about 150 mashgichim, told The CJN in a written statement last week that “the decision will have no repercussions for mashgichim, because the Kashruth Council’s remuneration policy has always been, and continues to be, in full compliance with the Employment Standards Act 2000.”

This stance may rely in part on a 2010 case unrelated to the present hearings in which the Ministry of Labour determined that the Kashruth Council’s overtime policy provides a “great right or benefit” under the provisions of the ESA.

Neither of the Rands wished to comment on the ruling to The CJN before this issue went to press.

The decision regarding mashgiach status is one of an ongoing series of cases between the Rands and the Kashruth Council. Future decisions are expected on issues concerned with actual unpaid wages, overtime and travel time owing.

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