Raiding foes Carpenters’ and LIUNA unite to back EllisDon bill

It may be a sign of the apocalypse or just coincidence but the United Brotherhood of Carpenters and Joiners and the Labourers’ International Union of North America (LIUNA) agree on one thing: Bill 74 is good for the construction business.

It may be a sign of the apocalypse or just coincidence but the United Brotherhood of Carpenters and Joiners and the Labourers’ International Union of North America (LIUNA) agree on one thing: Bill 74 is good for the construction business.

The controversial bill is one which would free EllisDon from the binding terms of a 1958 Sarnia agreement being applied provincewide. As of Oct. 23, the bill was stalled at Queen’s Park after the Liberal government flip-flopped on supporting it as part of a deal with the Progressive Conservatives to get legislation flowing through the house.

Despite a divisional court ruling last month striking down an Ontario Labour Relations Board (OLRB) ruling, which locked EllisDon into having to use specific construction union labour on all projects across Ontario, the company fears a series of “groundhog day” battles over the same issue unless critical legislation is enacted.

The solution is Bill 74, a private members’ bill, was set for a Queen’s Park legislative committee hearing on Oct. 24 though the NDP are opposed and the Liberals are under heavy political pressure from the Ontario Building Trades.

Tom Howell, EllisDon vice-president of labour relations, said the company worries it will not be competitive in the Ontario construction market, regardless of the court ruling which overturned a Feb. 2012 OLRB decision, if it is eventually forced to comply or if it is continually brought to the OLRB or other courts to argue the case indefinitely.

It is, in effect, a legal loophole which has bound EllisDon. That OLRB decision held that a 1958 union agreement in Sarnia with EllisDon effectively dictated that, under changes to the Ontario Labour Relations Act in the 1990s, EllisDon is required to use only union labour outside of Toronto.

In doing so, EllisDon would be the only construction contractor locked into union labour both inside and outside Toronto, placing it in a unique and ultimately untenable position, Howell says.

The OLRB also noted that the issue and matters of law are so complex that only an act of the legislature could resolve it. As a result, it made an order estoppel — meaning that the arguments could proceed no further and no further action be taken for two years — giving the government time to formulate and pass legislation.

Despite initial agreement among the Liberal government and the Conservative opposition to pass Bill 74 during the current session of the legislature, Premier Kathleen Wynn backed off and withdrew her party’s support saying it was “unnecessary” in the face of the court ruling.

When the two unions filed for leave to appeal at the Ontario Court of Appeal Wynne said she still wouldn’t support it.

For EllisDon, it’s tantamount to an invitation to the IBEW (International Brotherhood of Electrical Workers) and the Sheetmetal Workers union and others to engage them in still more litigation.

“They’ve already been back to the OLRB trying to reargue the same points,” said Howell. “This is not union busting. We’re a proud union company. But it’s an incredibly complex issue and that’s why it’s been so hard to get the story out.”

It starts in the late 1990s, Howell said, when an ORLB decision extended bargaining rights provincially and that triggered significant lobbying among unions and the 12 contractors involved at the time.

“It essentially said you were bound wall to wall with these 25 unions,” he said. “You couldn’t compete with 25 trade agreements across the province and in almost all cases those rights were obtained through the Toronto Working Agreement.”

The story takes another twist in 2001 when the Mike Harris PC government reacted to the pressure from the industry and invoked the Deemed Abandonment Regulation 105.01 which could deem certain bargaining rights abandoned except for six civil trades.

“We ended up with a piece of legislation that allowed for the Lieutenant Governor in Council to deem certain bargaining rights abandoned,” said Howell.

“It sat on the books for just one year and what it did was deem abandoned all those bargaining right outside of Toronto except for six civil trades. Those six trades, maintained for the most part, were trades the general contractors had a history of employing.”

It was during these discussions that EllisDon was led astray, Howell contends, and the OLRB most recently agreed.

In 2001, during the discussions between the 25 trade unions and 12 major contractors, as noted by the OLRB decision in 2012, the Ontario Building Trades business manager Pat Dillon suggested that the Sarnia agreement with EllisDon would not be brought up and that it wasn’t an issue.

Indeed, in the finding of facts the OLRB notes: “I conclude that the Building Trades collectively, through Mr. Dillon, made a representation about the legal relationship between them arising out of the Sarnia Working Agreement that induced EllisDon to change its position in respect of the political lobbying in which it had been engaged for several years.”

“This Bill will make an exception for EllisDon by excusing it from its obligations which will set an enormous precedent in the province of Ontario,” he wrote.

“It may drive other construction companies to pursue similar courses of action.”

He and others claim any changes would strike at the heart of workers’ “free and unfettered” rights to collective bargaining.

In any event, Dillon said, if EllisDon feels it is competitively disadvantaged it can pursue remedies under s. 163.2 of the OLRA but it will have to demonstrate the impact of its obligations.

“If EllisDon can actually demonstrate, beyond anecdotal claims, that it is suffering from a competitive disadvantage due to the Sarnia Working Agreement, the remedy available is far more practical than the legislative change proposed through Bill 74,” Dillon wrote to the Premier. “Bill 74 sets a dangerous precedent.”

But not all unions are in agreement. The battling giants of the Greater Toronto Area trade unions — the Carpenters’ Union and LIUNA, may have fought tooth and nail during the open period last spring but they have closed ranks in support of Bill 74, citing the rise of foreign-owned mega-construction companies.

“Unions recognize that Bill 74 is urgently required if EllisDon is to be able to continue to meet the challenges posed by increased competition from new entrants to the construction industry, including those based offshore,” wrote John Mosynki, the Carpenter’s senior general counsel in a letter of support distributed to all stakeholders in the debate.

He said Bill 74 would make only minimal changes and noted the Ontario Building Trades does not speak for the Carpenters.

LIUNA, similarly, is not represented by the Ontario Building Trades and also is supporting Bill 74. LIUNA Canadian president Joseph Mancinelli was unavailable for comment.

Ucal Powell, executive-secretary treasurer of the Carpenters’, said it comes down to three unions holding EllisDon’s feet to the fire — the electricians, sheet metal workers and the plumbers. The bigger issue for all unions, he said, is to better position Ontario contractors to compete against foreign conglomerates.

“Their (offshore companies) smallest P3 projects are bigger than (any) Ontario contractor’s biggest projects,” he said.