Written by Jim Robbins, Cavalluzzo
These are surprising times to practice construction labour law in Ontario.
Among other things, I learned on the evening of March 23, 2020 that I provide an essential service, as do my clients. Items 61 and 65 appear to apply to lawyers and law firms. Lawyer jokes aside, and more interesting, are items 26 to 29, which apply to construction.
Item 26 of the essential services consists of, “Construction projects and services associated with the healthcare sector, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space.” That makes perfect sense.
Item 27 appears just as sensible, at first: “Construction projects and services required to ensure safe and reliable operations of critical provincial infrastructure, including transit, transportation, energy …” But there’s more. Item 27 also declares building in “justice sectors” essential Building courthouses during a pandemic is an essential service? At a time when the Province of Ontario passed O. Reg 73 pursuant to the emergency declaration, suspending limitation periods for the duration of the emergency, and suspending time for taking steps in proceedings, subject to the discretion of courts, tribunals or other decision makers, this seems an odd inclusion on the essential services list.
And there’s still more: the provision concludes, “beyond day-to-day maintenance”. So to parse: “Construction projects … required to ensure safe and reliable operations of critical provincial infrastructure, including transit … beyond the day-to-day maintenance”. I am a big a fan of public transit as anyone, and many members of my clients currently make their livings building the Eglinton Crosstown Light Rail. That does not explain why Crosslinx Transit Solutions is an essential service during a pandemic.
The other two items, 28 and 29 apply to construction (and demolition) in the “ICI” sector — industrial, commercial and institutional – and residential sectors; and “construction work and services that supports health and safety environmental rehabilitation projects. Canadian Law of Work Forums should give a prize for anyone who can think of a type of construction project that is not “essential”.
Interestingly, some of the biggest residential builders in the province have a different view of their essentiality. Mattamy Homes Canada and Fernbrook Homes both suspended their site-based operations, Mattamy at least doing so on March 17, several days before the release of the essential services list.
Where does this leave the unions representing construction workers? Since they generally operate as sources of labour through hiring hall and referral provisions in collective agreements, they have good arguments that they are part of the “supply chains” identified as item 1 of the essential services list, apart from any other arguments available to trade unions. Now more than ever, construction workers–deemed essential–-need effective representation to ensure that safety measures are taken on job sites. On Sunday, March 29, 2020 the Ministry of Labour announced that it was “stepping up measures to limit the spread of COVID-19 on construction sites”. But MOL resources are limited.
As others have written on the Canadian Law of Work Forum(see here and here), workers, including construction workers, have various statutory entitlements including the right to refuse dangerous work without reprisal. They have a right to a safe workplace, with social distancing, proper sanitary measures and proper personal protective equipment. Some construction unions are faced with questions about whether their members should exercise the right to refuse unsafe work as a response to concerns about COVID19. Unionized workers can avail themselves of union representation when these rights are violated by employers through the grievance procedures in their collective agreements or in some cases through the protections in the Occupational Heath and Safety Act. Non-unionized workers can obtain union representation through the certification process under the Ontario Labour Relations Act. Construction unions have the option of referring grievances to the Ontario Labour Relations Board (OLRB). OHSA reprisal complaints may wind up at the OLRB. Certification applications will wind up there.
Which takes us to the OLRB. The OLRB has suspended in-person hearings and mediations up to and including May 4, 2020 (for now). The OLRB is holding teleconference hearings and video hearings to the extent their resources allow it, and we can expect to see more disputes dealt with by way of written submissions. The Board is still processing applications (by email only)and have maintained timelines for procedural steps, subject to discretion at the request of parties to proceedings, and subject to the circumstances and reasons for the request. Where votes are required, they are conducted electronically (increasingly standard practice at the OLRB’s federal equivalent, the Canada Industrial Relations Board).
Last week, the employer-side labour law firm Mathews Dinsdale, which represents many construction employers, made a pitch to the OLRB to shut down the processing of union certification applications during the COVID-19 outbreak (but no other applications or complaints). The OLRB advisory committee met on Monday, March 30, 2020 and reportedly decided that will continue to exercise its statutory duty, including allowing employees to choose union representation through certification rather than denying it at the behest of management lawyers.
Jim Robbins, “Construction Labour Law and COVID-19” Canadian Law of Work Forum (March 31 2020): http://lawofwork.ca/?p=12167