Bill 80 Submission to Human Services Committee
Submission to Human Services Committee
on behalf of
Local 01 Saskatchewan, International Union of Bricklayers & Allied Craftworkers
and
International Union of Bricklayers & Allied Craftworkers
to
MS. JOELLE PERRAS, COMMITTEE RESEARCHER
BILL NO. 80 THE CONSTRUCTION INDUSTRY LABOUR RELATIONS AMENDMENT ACT 2009
We welcome the opportunity to provide our views with respect to this extremely important, potentially, Province altering proposed legislative change. Further, we are pleased that this government recognizes the need to ensure that such important changes receive a full and fair public hearing process to which the government will be responsive. Thus, we respectfully provide the following comments, and thank you for allowing us to appear before your committee.
Although not the legislation itself, we thought it important to undertake an analysis of the "Backgrounder" dated March 10, 2009. It is in this document that the government outlines the "key amendments". More importantly, however, the Backgrounder informs the public (that is stakeholders, such as us, and the general populace) as to the need for such legislative change. Surely there must be some ills that require correcting. And, we strongly suggest, such ills should not be met with overreaching legislative change; nor should any change have unintended consequences the poor results of which far outweigh any intended benefit.
THE BACKGROUNDER:
Providing Freedom of Choice
In the Backgrounder it is alleged that the Construction Industry Labour Relations Act, 1992 (the CILRA) "restricts freedom of choice for employers and employees". Let us assume, for the sake of this argument, that such a statement is true. What harm results from this alleged infringement on freedom of choice? And, if there is any harm, is it justified when balanced against the rights and expectations of the Province at large?
The Constitution Act, 1982 (which includes the Canadian Charter of Rights and Freedoms) allows for perceived, apparent, or alleged infringement on freedoms when such infringement is for the betterment of society as a whole. Further, this governing Canadian legislation has been interpreted in this balanced manner throughout every level and jurisdiction of Court in the Country. In other words, there is no absolute freedom for individuals (including corporations or employers as individuals under those pieces of legislation), particularly in a situation where that freedom will impede on the rights or freedoms of others. As a result, a balancing of freedoms, so to speak, is required. Therefore, in our respectful view, prior to invoking such a reason for change a government must clearly illustrate that the balance tips in favour of the individual rights as against the rights of larger groups such as, in this case, the Saskatchewan construction industry.
We respectfully submit that the "larger group" actually extends well beyond the Saskatchewan construction industry. Construction clients, subsidiary industries and undertakings, and end-users of the product of the construction industry (such as the general public) are also potentially negatively impacted as a result of these proposed amendments. Therefore, these groups must also be considered when balancing any rights.
According to Statistics Canada (www.statcan.gc.ca) Table 379-0025(1,25,26), Construction Gross Domestic Product (GDP) in "chained dollars" in 2008 is fifty percent (50%) greater in Saskatchewan than it was in 1999. In fact, but for a slight dip in 2007, construction has continued to gain. The construction industry is currently ranked eighth (8th) in GDP behind Saskatchewan's main stays of agriculture, livestock, mining and forestry but also, ahead of health care and education. We have appended this as Appendix 1. There is no doubt that to match the growth in mining and oil and gas extraction (financial and other services) projected construction will be one of the most important sectors of the economy. There are likely to be more significant gains and, as a result, the numbers impacted by the industry are certain to expand. So, we must consider the Province as a whole, and all aspects thereof.
Saskatchewan, since the enactment of the CILRA, enjoys an extremely stable construction industry. There have been no work stoppages (we will deal with this in greater detail below). This is beneficial to the Province. The introduction of legislative change to enhance the rights or freedom of choice of employers is not of greater significance or importance than the rights of the Province as a whole.
We also take issue with the statement in the Backgrounder that, "Saskatchewan is the only Canadian jurisdiction that requires unionized employers in construction to be a member of a representative employer's (sic) organization for the purpose of bargaining."
While this may be technically correct, due to the listings appended to the CILRA, it is a bit of a red herring. We have listed below the jurisdictions in Canada (seven) in which a quick search illustrated legislative requirements for membership in a representative employers' organization.
- Federal- Canada Labour Code, R.S.C 1970, as amended.
- Section 33.(1) Designation of employers' organizations
- Alberta- Labour Relations Code, R.S.A. 2000, c. L-1., as amended.
- Part Three Construction Industry Labour Relations
- Div 2 Registered Employers' Organizations
- British Columbia- Labour Relations Code, R.S.B.C 1996, c. 244, as amended.
- Div 6 Employer Organizations
- Ontario- Labour Relations Act, 1995, S.O. 1995, as amended.
- Section 153, Designation by Minister.
- Section 162, Agency shall make only one agreement.
- Manitoba- Labour Relations Act, C.C.S.M. c. L10, as amended.
- Section 142 (5) Determination of Questions by the board, (c) whether an organization or association is a union or employers' organization, (i) whether employee belongs to a craft or group with special skills.
- Newfoundland- Labour Relations Act, R.S.N.L 1990, c. L-1, as amended.
- Part III Organization of Parties for Collective Bargaining
- Section 56.1 Mandatory employers' organization.
- Prince Edward Island- Labour Act, R.S.P.E.I. 1988, c. L-1, as amended.
- Section 55, Accreditation
Thus, it appears that designated employer organizations and trade unions or councils of trade unions are not unusual in Canada. In fact, it could be argued this is the norm in this Country. These designations are determined by regulation, certifications or accreditations already held with the appropriate board or tribunal having the authority to make designations based on certification rulings or applications that are deemed valid. And, we did not reference the applicable legislation from the Province of Québec, where the construction industry is regulated to a degree unparalleled in this Country or North America. Employers in that Province do not even have the option of operating non-union. Clearly, there is an infringement on freedom of employer choice in Québec; but it is an infringement on a freedom that is justified when balancing all other rights. This Québec system was challenged in R. v. Advance Cutting and Coring Ltd., [2001] S.J.C. No. 68 (Advance Cutting and
Coring). The system in Québec survived that challenge and continues to this day.
Finally, with respect to this position put forth in the Backgrounder, we understand that an employer can freely operate in the Province of Saskatchewan without requisite membership in an employers' organization; they simply can, and do, operate non-union. Thus, where is the restriction on choice? That option, or choice, as mentioned above, does not exist in Québec.
However, if this legislation aims to add new employer associations to the mix, that leads to another set of problems. And, if that is the goal of the proposed amendments it should, in our respectful view, be stated. If so stated, parties might then be able to properly advance positions for or against such a goal.
Regardless of the view expressed regarding freedom of choice however, it is recognized by all stakeholders in Saskatchewan's construction industry that the stability sought for years has now existed since the implementation of the CILRA. We entered two (2) search queries for work stoppages in the construction industry involving one (1) or more workers in Saskatchewan. See appendices 2A and 2B. A Chronological Perspective on Work Stoppages in Canada, produced by Human Resources and Social Development Canada (HRSDC). The first query was from 1976 (the earliest date permitted) until 1991. There were significant person-days not worked (the units of time used to measure the work stoppages) in many of those years. During that time the person-days not worked ranged from a low of zero (0), to a high of three-hundred and sixty two thousand, six-hundred and eighty (362,680). And, there were two (2) years in that time-frame of over one-hundred thousand (100,000) person-days lost!
Our second query was from 1992 until 2009 (April). We found only one (1) work stoppage; in March of 1992, prior to the passage/effective date of the CILRA. This work stoppage involved six-hundred and fifty (650) workers and totaled one thousand, seven-hundred and fifty (1,750) person-days not worked (or, five days per worker). Thus, there have been no recorded work stoppages since the passage of the CILRA. We cannot think of a greater display or higher proof of stability in an industry. We have appended these results hereto.
All other arguments aside regarding the "intent" to make CILRA fair and to address the "stated" inequity that Saskatchewan is the only jurisdiction that still determines trade unions and REO's directly via legislation (a statement with which we disagree), the fact that CILRA has named all the bargaining entities in a schedule to the act does not mean the entities (trade unions and REO's) are determined by legislation.
The entities became certified by virtue of their experience, existence, relevance and abilities to do the job and by following the rules contained in Saskatchewan legislation. In other words they won the right.
Why, then would this government risk such stability for the sake of the claimed "freedom of choice" of an individual; whether that individual be a citizen of Saskatchewan or a corporate entity from elsewhere?
Rebuilding Saskatchewan's Infrastructure
It should be obvious to all that we are in total support for this government's plan to rebuild Saskatchewan's infrastructure. However the problems identified in this section of the Backgrounder (projects not proceeding as quickly as desired due to a lack of skilled labour, delays and cost overruns) will not be solved as a result of the passage of this Act. Does anyone really, seriously, suggest that the problem of a lack of skilled labour can be solved by allowing into the construction industry employers (from out of Province, of course) and employee representatives who boast about their cheaper labour? They cannot. How does bringing down the remuneration packages for skilled workers assist in attracting those skilled workers? It does not.
Higher wages; wages that recognize the special skills, focused training, recognized apprenticeships, certification, dedication, craftsmanship and professionalism, attract skilled workers. This is why, at least in large part, so many of our skilled craftworkers and tradespersons work so many hours in neighbouring Alberta. It certainly isn't the preference for Alberta over Saskatchewan as a place to live. Alberta is where the jobs and best remuneration packages have been. We need to stop training Alberta's skilled tradespersons, and renew a commitment to training our skilled workers for the benefit of Saskatchewan.
The stated purpose, under this heading of the Backgrounder, is that, "[T]hese amendments will enable work to get done more quickly by attracting additional construction companies and employees into the province and by encouraging more competitive bidding on projects."First, and perhaps foremost, why do we want to attract out of Province companies and employees? Isn't it better to build Saskatchewan with home-grown employers and employees? Bringing skilled workers into the Province may (and, we are not prepared to concede this as a fact) enable the work to get done more quickly. But, it will do nothing to improve the skills, training and experience for, and of, Saskatchewan workers. We need, quite simply, training and competitive wages and benefits to attract Saskatchewan workers back to Saskatchewan! This important consideration is also dealt with later herein, under "Industry Challenges". Bring Saskatchewan workers back to Saskatchewan.
We are truly at a loss to understand how these changes to the CILRA will serve to attract additional construction companies. What disincentive currently exists? A company can come to the Province and work under the scheme of the CILRA, a scheme designed for and providing stability in the industry, or they can come to Saskatchewan and work non-union. Why is another option required? In all sincerity, absent hyperbole or dramatics, we do not understand how providing a "third" option attracts additional construction companies. Are there incentives we are unable to recognize in the proposed changes? We respectfully request an explanation surrounding this claim and the opportunity to provide further submissions in this regard upon clarification.
Respecting the Constitution
It seems that we got ahead of ourselves in the opening to our submissions. We have, we feel, adequately addressed this concern. In short, with all due respect, the opinion you received was wrong. We referenced a number of provinces earlier herein when we dealt with the "constitutional issue". There have been a number of "Constitutional" challenges to labour legislation in Canada, including Advance Cutting and Coring. And, the Courts have balanced rights (as we discussed above) to find that the schemes survive the challenge. Another example of this is Arlington Crane Service Ltd. v. Ontario (Minister of Labour), [1988] O.J. No. 2060 (High Court of Justice), where a scheme mandating employee and employer bargaining agencies was also upheld. Here are other, similar cases in which schemes designating bargaining agencies have survived Constitutional analysis. In fact, we are no less confident that the CILRA, as currently enacted, would equally pass scrutiny in the courts.
Providing Clarity/Fairness
Who could argue against clarity or fairness; certainly not our organization. Unfortunately, it seems that the assessment of these concepts lies in the drafters of legislation. That is, seasoned practitioners before the Saskatchewan Labour Relations Board (the Board), and those bound to the Board's governing statute and regulations, are clear on the requirements of the CILRA. Further, we would suggest that the issue of fairness may be somewhat fluid from case-to-case. But, that is the nature of proceedings before any administrative tribunal.
With respect to the abandonment of bargaining rights, our position may surprise. The harm this provision aims to correct is signatory contractors who, in an underhanded manner, attempt to avoid their collective agreement obligations. There are many cases where these unscrupulous employers (who we say are the minority, certainly in the masonry industry) have gone "underground" and performed work out of sight, reasonable sight, of the union to whom they are bound. Once caught, the company then argues that the union has abandoned its rights. This is entirely different from the case of a union failing to enforce its rights as against a signatory contractor. We do not disagree that if we, as the employee representative, simply refused to carry out our duties, failed to enforce our legal contract, and were generally negligent; that is on us, not the employer. But, at the same time, a contractor should not be rewarded for skullduggery, subterfuge or skirting responsibility.
This is, in our respectful view, a simple fix. It does not require upsetting the stability of the industry. And, we would be quite interested in being involved in the process to rectify this perceived wrong without imposing unintended consequences upon "innocent" parties.
It is nearly impossible to challenge an unsupported statement such as, "Saskatchewan legislation includes maintenance in its definition of construction. This has limited the number of companies willing to bid on industrial maintenance jobs." With all due respect, we find this rather difficult to believe; particularly without any support. We respectfully request that you provide us with real examples; examples we are able to deal with, rather than such a bald statement. How has this limited the will of any company or companies from bidding on maintenance?
The maintenance industry is rather tight-knit throughout Canada. Employers who are involved in maintenance in one part of the Country are usually found in numerous geographic jurisdictions. BAC deals with these contractors on a regular basis, through membership on the General Presidents' Committee (GPC) and National Maintenance Agreement (NMA) Canadian committees; and we have yet to hear of any contractor unwilling to bid on maintenance work in Saskatchewan due to its inclusion in the definition of construction. In fact, there is an extremely healthy maintenance industry in the Province, with some contracts ongoing for over twenty (20) years, such as the Husky project in Lloydminster, and for over forty (40) years, such as IMC Kalium (now Mosaic Canada Group of Plant Sites in Belle Plaine, Colonsay, and Esterhazy). We are also aware of maintenance agreements at places like: Saskferco Products Inc., Belle Plaine; and Akzo Nobel Chemicals Ltd., Saskatoon.
Industry Challenges
All of the challenges enunciated under this section, or any other, of the Backgrounder can be expressed very simply as; a shortage of skilled labour. In fact, this is the term used by this government in the Backgrounder. And, we wholeheartedly agree that this is the common denominator; the real issue; the only problem. Where we disagree, and vehemently so, is with this proposed legislative change as a solution in whole or in part.
We have been involved in assessing skills needs, present and future, for some time now. What is required is training. To that end Local 01 has entered into a partnership with the International Masonry Institute (IMI) to deliver training for the masonry crafts in Saskatchewan. We have worked with our employer partners, with provincial and federal agencies, with First Nations groups, and will continue to do so. And, we know that other building trades unions do the same or even more. We have created in-Saskatchewan solutions for this problem.
It does this Province no benefit to bring in contractors and workers from other jurisdictions to perform the jobs, only to leave when the work is finished. We may have an improved infrastructure, but we will be sorely absent skilled workers (and, this doesn't even address the ills of having the money leave the Province). Saskatchewan is rich in people as a resource. And, we are knowledgeable in the trades. Most importantly, though, we want to pass along this knowledge to the young, unemployed, and underrepresented people in this Province. Training will meet all of the industry challenges identified in the Backgrounder.
Lack of competitive bidding is due to a lack of skilled workers. If a contractor does not have access to skilled workers, that contractor is unlikely to be willing to bid or able to complete jobs. There is nothing in our experience or in the Backgrounder to suggest that it is any factor other than a lack of skilled workers. We are unaware of any contractors resistant to bidding work in Saskatchewan as a result of the CILRA. Once again, we are somewhat confused by this assertion and would respectfully ask for some clarification and/or examples.
This challenge, the lack of skilled workers, and the accompanying concerns that surround this challenge are also being effectively addressed by the Construction Opportunities Development Council (CODC). The CODC is a Saskatchewan created, Saskatchewan run organization benefiting the people of Saskatchewan. CODC "benefit(s) Employers, Employees, Project Owners and the public. From enhanced training opportunities, to skills and safety standards, to the best possible supply network, Saskatchewan?s organized Employers and Building Trades are essential for a strong construction industry in our province."" [CODC website] Clearly, then, the organized construction industry in Saskatchewan is the first place this government should, with all due respect, look. It is demonstrative of a cohesive industry, where the partners (employers' associations and employees' representatives) are looking to better the industry while simultaneously ensuring continued stability for the health of
the Province. Changing the landscape significantly, permitting non-Saskatchewan employers to run outside this established system, and/or fracturing the industry are all high-risk ventures without a reasonable expectation of positive return. And, with all due respect, the solution proposed certainly fails to address the stated concerns.
BILL 80: THE PROPOSED CHANGES:
Craft Units
It is, quite frankly, folly to suggest that a craft unit is NOT the most appropriate unit for certification and collective bargaining in the construction industry. Were it otherwise, the craft unit would not be the most dominant certified and bargaining unit in the construction industry throughout Canada and North America. There are a number of reasons for this.
First, we must consider the obvious community of interest between and among tradespersons of specific trade groups. Clearly, the International Union of Bricklayers and Allied Craftworkers (BAC) fully understands and, therefore, is best suited to represent masonry tradespersons. That this is true and of most benefit to tradespersons, contractors, the industry and end users is, in our view, unquestioned. Whether it is reference to H. Carl Goldenberg and John H. G. Crispo, Construction Labour Relations (Commissioned by the Canadian Construction Association in 1968), D.E. (Don) Franks, Report of the Industrial Inquiry Commission into Bargaining Patterns in the Construction Industry of Ontario, May, 1976 (the Franks Report), or various articles by labour law practitioners and academia, (such as, for example, H.W. Arthurs, G.W. Adams) there is no doubt that the craft unit is the most appropriate for representation and bargaining in the construction industry.
We also refer you to a passage from an article by Professor Judy Fudge in the Saskatchewan Law Review (1996), 60 Sask. L. Rev. 237:
The bargaining unit is the basic structural feature in Canadian labour relations law. Under Canadian collective bargaining law, labour relations boards have the exclusive authority to determine the appropriate bargaining unit. Although labour relations legislation provides some guidance as to what constitutes an appropriate bargaining unit in certain situations such as craft workers or professional employees, this is the exception rather than the rule. Labour relations boards across Canada have developed well-established policies on what constitutes an appropriate bargaining unit.
In determining what constitutes an appropriate bargaining unit, labour relations boards must balance a range of complex and often competing considerations. The concept "community of interest" is applied by all boards to determine the appropriate bargaining unit. This concept covers a number of factors, including:
- similarity in the scale and manner of determining earnings; in employment benefits, hours of work, and other terms and conditions of employment; in the kind of work performed; and in the qualifications, skills, and training of employees;
- the frequency of contact or interchange among employees and the geographic proximity of workplaces;
- continuity or integration of production processes;
- common supervision and determination of labour relations policy;
- relationship to the administrative organization of the employer;
- history of collective bargaining;
- desires of affected parties and employees; and
- extent of union organization
Leaving aside, for a moment, the uniqueness of the construction industry and all of its differing relationships; all of the factors listed still lead us to the inescapable conclusion that the craft unit is the most appropriate unit in the construction industry.
Training, benefits and other factors operate in Canada on an established trade basis. And, Saskatchewan is no different in this regard. Moving away from such an established, accepted, and successful model (especially without any sound reasons) would be too great a risk. This is the model that works in our industry; and it works extremely well.
OTHER CONSIDERATIONS:
Since we have been provided an opportunity to make oral submissions before your Committee, we have chosen to limit our written submissions. We do intend to address other aspects of the "law", as well as our views on possible alternatives to this suggested reform.
We also trust that in the event that you have questions or require additional information from us (related, or not, to these submissions), you will feel free to contact us at your convenience. In fact, we welcome further dialogue in this regard.
All of which is respectfully submitted by
Clarence Medernach President/Secretary-Treasurer BAC Local 1 Saskatchewan
Graeme Aitken Assistant to the President Canadian Affairs International Union of Bricklayers and Allied Craftworkerss to personalize and send to your MLA.
