COR asks OLRB to rule on mashgichim’s overtime

The building that houses the Kashruth Council's offices GOOGLE STREET VIEW PHOTO
The building that houses the Kashruth Council offices. GOOGLE STREET VIEW

TORONTO — The Kashruth Council of Canada, also known as COR, is asking the Ontario Labour Relations Board (OLRB) to overturn a Ministry of Labour compliance order requiring it to pay its mashgichim overtime.

The compliance order came after an inspection of COR’s operating practices. It found that in some cases COR paid its mashgichim more than required by law, but “there were numerous instances in which employees worked well in excess of 44 hours a week and were not paid overtime pay, by operation of the employer’s policy.”

The Kashruth Council, which certifies kosher products under the COR logo, is asking the OLRB to review that finding. It is relying on a June 2013 OLRB decision that supported COR’s position on overtime, stated an email from Richard Rabkin, managing director of COR.

“COR is committed to compliance with all statutory requirements on payment of its staff, including mashgichim,” Rabkin wrote. “The Kashruth Council provides for overtime that is more generous than the provisions of the Employment Standards Act (ESA) to the extent that if a mashgiach works more than 10 consecutive hours on a job, he or she will be entitled to overtime pay. In contrast, the ESA requires that overtime be paid at a rate of time and a half for hours in excess of 44 hours per week.”

On March 5, an employment standards officer of the Ministry of Labour issued a compliance order that came after an inspection of COR premises and an audit of its practices. The officer found several violations of provisions in the ESA, including record-keeping for vacation time; hours of work provisions, involving excess daily and weekly hours and rest between shifts; failure to have written agreements in place with employees who work on public holidays; and contravention of the vacation pay and vacation time provisions of the ESA.

“Our view is that our practices are consistent with statutory requirements,” Rabkin stated. That assessment was confirmed by Ministry of Labour spokesperson William Lin, who said, “the employer has complied with the other standards.”

The officer visited COR premises in November 2013 and reported that the organization employs approximately 50 people, including office staff, co-ordinators, administrators and mashgichim. COR also draws upon a pool of 146 other employees when needed.

(In its filings to the Canada Revenue Agency, COR reported in 2013 that it had 37 full-time employees, had no part-time staff and had no expenses for part-time workers.)

The employment standards officer’s Reasons for Decision focused only on provisions relating to the mashgichim, who inspect food processes at remote locations to determine whether they comply with standards of kashrut.

An OLRB hearing next month will address the overtime and hours worked aspects of the compliance order, Lin said.

In appealing the order’s provision on overtime, COR is relying on the June 2013 OLRB decision, which ruled mashgichim are supervisory personnel and as such, the ESA’s provisions on overtime and limits on hours of work don’t apply to them.

However, the employment standards officer considered the earlier judgment and concluded “the OLRB’s decision is not binding. However, even if it were, it is open to me to find that the supervisory/managerial exemption does not apply, in light of the fact that the board’s decision was based on the uncontradicted evidence of the employer.

“I am of the view, based on the best available evidence, that the role of the mashgichim is not supervisory in character, as they primarily supervise processes, not people,” she concluded.

Rabkin stated that despite COR’s belief that the mashgichim are exempt from provision of the ESA, “we have decided to go above and beyond our statutory requirements and pay overtime nonetheless,” he said. The OLRB’s June 2013 decision found that COR’s practice “was a ‘greater right or benefit’ than that provided by the ESA and was an appropriate measure of compensation.”

“We are confident that our pay practices will stand up to statutory and judicial scrutiny. Our mashgichim prefer this method of payment, which is why we compensate them in this manner,” Rabkin stated. The case will be heard on Jan. 6 in Toronto.