I’m currently revising and updating my little pamphlet called The Canadian Charter of Rights and Freedoms and Workplace Law: A Guide for Beginners. That piece is only 2 years old, yet is sadly out of date already. Given the volume of Charter cases dealing with labour issues these days, writing a ‘where we are at’ piece is like trying to take a snap shop of a speeding train!
Yesterday, I considered an Alberta decision about freedom of expression and collective bargaining activities. Also this week, the Ontario Court of Appeal decided another Section 2(d) case, this one involving the provisions of the Ontario Labour Relations Act that govern the construction industry. That case is called Independent Electricity System Operator v. Canadian Union Skilled Workers.
The construction industry is governed by a special labour relations regime for a variety of practical and historical reasons. A key difference in that regime, compared to the normal labour law regime that governs most workplaces, is that collective bargaining usually operates at the sectoral or industry level, and then collective agreements bargained at that level are applied to individual employers who use unionized workers.
Section 127.2 of the OLRA says essentially that the Board may declare that an employer is a ‘non-construction employer’, which is an employer that does not sell construction services. If the Board decides that an employer is a ‘non-construction employer’, then that employer is no longer governed by the construction part of the Act, and: (1) any union that represents construction employees of that employer no longer does so; and (2) any construction collective agreement that applies to an employee of that employer no longer applies.
In this case, an employer called Independent Electricity System Operator (“EO”) was found by the Board to be a ‘non-construction employer’ because it did not sell construction services, nor did it employ any unionized construction workers. However, EO had been bound historically to construction collective agreements which prohibited it from contracting out certain types of work to nonunion contractors. This benefited the unions and their members indirectly, because it meant that EO could only contract out to contractors who would use union members. A ‘non-construction’ employer declaration would remove those restrictions on contracting out. But the Labour Board refuses to issue the ‘non-construction employer’ declaration and instead ruled that Section 127.2 was unconstitutional. The Board ruled that, by effectively voiding a collective agreement and the union’s statutory right to bargain with EO, the legislation ‘substantially interfered with the process of collective bargaining’ in violation of Section 2(d), as explained in B.C. Health Services.
Issue: Does Voiding a Construction Collective Agreement and Representation Rights of a Construction Union upon a delcaration of a ‘non-construction employer’ violate Section 2(d) freedom of association?
DECISION: No Charter Violation.
The Court of Appeal ruled that it does not, and thus it over ruled the OLRB. Relying on Fraser, the Court noted that it is only laws that ‘substantially interfere” with the ability of workers to act collectively to achieve workplace goals. The Court said there was a big difference between what happened in B.C. Health Services and what happens under Section 127.2. In B.C. Health, the legislation ripped up collective agreements and prohibited bargaining over certain issues in the future. Section 127.2 does void construction collective agreements as they apply to a newly declared ‘non-construction employer’, however that is because “the employer is no longer a construction employer”.
According to the Court, Section 127.2 does not prohibit future collective bargaining at the non-construction employer, it simply requires unions to start over–to get certified or ‘voluntarily recognized’ as the representative of the employees of the employer under the non-construction sections of the Act, and then to try and bargain a first collective agreement in the normal manner. The fact that the construction collective agreement no longer applies to EO, and as a result, EO need not use only unionized contractors in the future, might result in lost job opportunities for the unionized workers doesn’t matter. The Charter does not protect “employment opportunities”.
The facts in this case were unusual in the sense that EO did not actually have any employees doing construction, and it employed no union members, yet it was still bound by the construction collective agreement because of a decision issued years earlier. This makes the claim that ’employees’ freedom of association was violated by a Section 127.2 tenuous. Would the outcome be different if EO did employ some union members covered by a construction collective agreement?
The Court here emphasized that Fraser confirmed that Section 2(d) does not protect access to any particular model of labour relations. One possible implication of this decision is that it confirms that a government can decide to void a collective agreement established under one regime favourable to unions, place the employees under another less favourable regime, and require the employees and the union to start over from scratch.
Does this mean, for example, that the Ontario government could pass a law decertifying all existing unions, and voiding all existing collective agreements bargained under the existing Labour Relations Act machinery, as long as the employees affected have the ability to start over under another labour relations regime, such as the much weaker regime created under legislation like the Agricultural Employees Protection Act?