The Ontario Labour Relations Board (OLRB) has rejected the Kashruth Council of Canada’s (COR) contention that its mashgichim (kashrut supervisors) are managerial personnel who are exempt from the provision of the province’s Employment Standards Act (ESA) that mandates overtime pay.

On July 27, OLRB vice-chair Brian McLean ruled that, “Mashgichim supervise activities in a very narrow range.

“They are only responsible to ensure that employees prepare and handle food in the way that complies with kosher law. Mashgichim have no authority to hire or fire employees (over a violation of kosher law or a refusal to follow the instructions of a mashgiach) or any involvement in the setting of wages. They have no authority to direct, guide, oversee or report on productivity or other issues other than to ensure compliance with kosher law. No one could imagine any employee seeking out, or even coming to a mashgiach with any of those concerns. Their only authority is in the area of ensuring food preparation complies with kosher law. They do not have anywhere close to the kind of authority that an employee whose job is truly supervisory in character has.”

The case arose out of a March 5, 2014, compliance order issued by a Ministry of Labour employment standards officer, who found that COR failed to conform with the overtime, vacation pay and record-keeping provisions required by the ESA. The officer found that COR’s mashgichim “did not supervise the employees at the clients’ businesses.”

The Kashruth Council has long maintained that its mashgichim are supervisory personnel and so the ESA does not apply to them. It also contends that it compensates its mashgichim beyond statutory requirements and offers greater flexibility in terms of work hours than is required by law.

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In June 2013, COR took its case to the OLRB, and in a case decided by vice-chair Tanya Wacyk, the labour board agreed that mashgichim were supervisory in nature and exempt from the ESA’s provisions.

However, in his recent decision, McLean said he was not bound by that ruling for a number of reasons, including the fact that no one from the ministry showed up to oppose COR’s position during the original hearing.

In his decision released in July, McLean noted the commercial nature of the mashgichims’ work.

“In that context, there is no particular reason why the employer requires mashgichim to work overtime (at all, or in any event, without compensation) or would have difficulty recording their hours of work as might be the case with genuine supervisors.… These are simply the costs of doing business, albeit a ‘religious’ business.”

Responding to the OLRB decision, Richard Rabkin, managing director of COR, said, “We are pleased that the matter of the legal status of our mashgichim has come to a conclusion and that the OLRB has provided us with finality.

“Until now we had been conducting our affairs in accordance with the OLRB’s 2013 decision where vice-chair Tanya Wacyk decided that mashgichim were supervisors in the context of the Employment Standards Act and that our system of overtime payment was a greater right or benefit. Our method of overtime payment was per shift as opposed to per week, namely that mashgichim were paid overtime once their shift exceeded 10 hours, rather than after 44 hours per week as that benefited the majority of our mashgichim.

“With the OLRB’s recent decision, we will adjust our policies and we will of course reorganize our operations to be in full compliance with the OLRB’s decision.”

Janet Deline, a spokesperson for the Ministry of Labour (MOL), said the ministry expects an employer to comply with the OLRB decision.

“The MOL has the ability to inspect the employer to confirm compliance. Should this happen and the employer not be in compliance, the MOL will use the appropriate enforcement measures,” she stated.

“Ministry inspectors have the authority to issue a ticket or summons under the Provincial Offences Act, to employers who fail to comply with specific provisions of the (ESA) and its regulations.”

Penalties range from a few hundred dollars, to a fine of as much as $500,000 for a corporation that is convicted of a third offence, she added.