Certification of Bargaining Unit for Dependent Contractors

Order No.: 12190-U IN THE MATTER OF THE Canada Labour Code - and - [NAME] , applicant, - and - [COMPANY]., Delta, British Columbia, employer. WHEREAS the Canada Industrial Relations Board ( the Board) has received an application for certification pursuant to section 24(1) of the Canada Labour Code (the Code ) from the [NAME] (the applicant) seeking certification as bargaining agent for a unit of employees of [COMPANY]. (the employer); AND WHEREAS the applicant proposed the following description for the bargaining unit: All dependent contractors of [COMPANY]. working at and from 109–8300 92nd Street, Delta, British Columbia, [ADDRESS], British Columbia, and 2872 192nd Street, Surrey, British Columbia, excluding office, clerical and administrative staff, safety and compliance staff, dispatchers, planners and supervisors, managers and those above the rank of manager. AND WHEREAS the employer opposed the application, asserting that the individuals in the [NAME] are not dependent contractors within the meaning of the Code and that the [NAME] is inappropriate as there is a lack of a community of interest between the individuals working out of the terminals identified in the bargaining unit description; AND WHEREAS section 16.1 of the Code provides that the Board may decide any matter before it without holding an oral hearing, and, having reviewed all the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this matter without an oral hearing; AND WHEREAS the status of dependent contractor is not limited to individual persons, and incorporated owner-operators may meet the definition of “dependent contractor” ( see [NAME]. , 2010 [NAME] 520) ; AND WHEREAS , under the terms of the template “owner-operator agreement” used by the employer, the contractor is required to provide a vehicle and freight transportation services to the employer, must be the legal owner or lessee of the vehicle and is solely responsible for the financial risk or reward related to the provision of their services; AND WHEREAS , while the employer submitted that “most” of the contractors are subject to the “owner-operator agreement,” it did not provide any details regarding the terms and conditions of work of the contractors who are not subject to the “owner-operator agreement” and did not assert that these contractors are not subject to a similar agreement or do not meet the criteria of paragraph (a) of the definition of “dependent contractor”; AND WHEREAS a party seeking to exclude a person from the definition of “employee” or from the scope of the bargaining unit bears the onus of proof in this regard (see Consortium de télévision [COMPANY]. , 2003 [NAME] 224); AND WHEREAS , given the above, the Board finds that the criteria of paragraph (a) of the definition of “dependent contractor” set out in section 3(1) of the Code are met; AND WHEREAS the employer’s submission that the contractors are not prevented from carrying on business with any other third parties is not sufficient to demonstrate a lack of economic dependence; AND WHEREAS the applicant submitted that the contractors do not have a realistic prospect of carrying on business with any third parties due to the requirement that they affix permanent employer-branded decals to their vehicles and the fact that most contractors operate under the employer’s National Safety Code certificate; AND WHEREAS the employer has not provided any evidence indicating that the contractors are not economically dependent on it; AND WHEREAS , given the above, the Board finds that the criteria of paragraph (c) of the definition of “dependent contractor” set out in section 3(1) of the Code are met; AND WHEREAS , in determining an appropriate bargaining unit, the Board must take into account the objectives of the Code and may consider such factors as community of interest, the long-term viability of the unit, the employer’s organizational structure, the practices and bargaining structures in the industry and the wishes of the employees seeking union representation; AND WHEREAS all the members of the [NAME] work for the employer in the defined geographic area of the province of British Columbia, have the same classification and perform similar duties (they are contractors who provide vehicles and driving services to the employer); AND WHEREAS the fact that the contractors working out of the Cross-Border British Columbia terminal drive into the United States does not, on its own, demonstrate a lack of community of interest with the other contractors who operate locally within the lower mainland of British Columbia; AND WHEREAS one operations manager currently oversees all the contractors covered by the [NAME] description, and, while the employer submits that this could change in the future, the Board does not consider hypothetical future changes in considering the community of interest; AND WHEREAS the Board finds that the different rate structure for the contractors working out of the Cross-Border British Columbia terminal does not render the bargaining unit inappropriate for collective bargaining and that any variation in rate structure can be addressed in collective bargaining; AND WHEREAS , although the employer has stated that it reserves the right to make further submissions, the Canada Industrial Relations Board Regulations, 2012 , are designed to give parties a full opportunity to make submissions, directing them to provide full particulars of the facts and the grounds for their position together with any supporting documents, and a party does not have the right to make further submissions once the period for filing a response and a reply has expired (see [COMPANY]. , 2018 [NAME] 871); AND WHEREAS , following investigation of the application and consideration of the submissions of the parties concerned, the Board has found the applicant to be a trade union within the meaning of the Code , has determined the unit described hereunder to be appropriate for collective bargaining and is satisfied that a majority of the employees of the employer in the unit wish to have the applicant trade union represent them as their bargaining agent. NOW, THEREFORE , it is ordered by the Canada Industrial Relations Board that the [NAME] be, and it is hereby certified to be, the bargaining agent for a unit comprising: all dependent contractors of [COMPANY]. working at and from 109–8300 92nd Street, Delta, British Columbia; [ADDRESS], British Columbia; and 2872 192nd Street, Surrey, British Columbia, excluding office, clerical and administrative staff, safety and compliance staff, dispatchers, planners, supervisors, managers and those above the rank of manager. ISSUED at Ottawa, this 15 th day of June 2026, by the Canada Industrial Relations Board. [NAME]-Chairperson Reference: File No. 039865-C