The B.C. Supreme Court has dismissed a challenge to the provincial government’s community benefits framework (CBA) by a coalition of construction associations, unions, businesses and individuals.
On Feb 3. The court ruled the case should go before the Labour Relations Board (LRB), while the coalition insists CBAs violate workers’ rights of free association as defined by the Charter of Rights and Freedoms. Under projects using the CBA framework such as the Pattullo Bridge replacement and the planned Broadway Skytrain expansion after thirty days those who want to bid and work on CBA projects must join an approved union managed by the BC Infrastructure Benefits crown corporation.
“We continue to be of firm mind that the rights of B.C. workers are a matter of extreme importance, and the B.C. government has not done its duty with those workers by taking their rights away,” Progressive Contractors Association of Canada president Paul de Jong said.
“This case is important for all British Columbians, and contractors and others need to have clarity on this issue. It’s not fair and not competitive for contractors,” he added.
Independent Contractors and Businesses Association (ICBA) vice president of communications and marketing Jordan Bateman said the provincial government’s strategy is to delay the process.
“The government’s whole strategy is to run as much time as possible and build these projects with their favored building trade unions,” Bateman said.
The coalition filed their challenge 18 months ago and went to court eight months ago, Bateman said, and while the provincial government wants the case heard by the Labour Relations Board “the merits of the case have not been heard by the courts.”
“The government wants to avoid that because they know they can’t win on the merits of the case,” he said.
CLAC BC Manager of government relations Ryan Bruce said his organization and the coalitions will continue to oppose the CBA framework.
The merits of the case have not been heard yet, so we will be appealing,
— Fiona Famulak
Vancouver Regional Construction Association
“We’re going to appeal and we’re standing up for our members and part of that is the legal challenge. Unfortunately, this all takes time but in the meantime workers’ rights are being infringed upon as they’re forced to join unions they don’t want to join to work on these projects,” Bruce said.
“There’s three projects on the go with this policy, and it’ll be next year if we’re lucky to get back to the merits of the case and that’s unfortunate for those whose rights are being infringed upon,” he said.
“It is disappointing, and I feel like it is a government strategy to ‘rag the puck’ on this, so to speak,” Bruce added.
“We’ll take this to the Court of Appeal and go from there,” Bateman said. “The government only wins in the sense that they get more delays and more red tape, with the merits of the case never argued in front of a judge.”
BC Building Trades executive director Andrew Mercier said he was pleased with the court’s ruling.
“We went in and were looking for a fair hearing and got a fair hearing and the court made a decision in line with results in the past. Namely criticism by CLAC and the and the Independent Contractors and Businesses Association doesn’t rise to the level of being heard by the court,” Mercier said.
Vancouver Regional Construction Association president Fiona Famulak said her organization was disappointed but determined after waiting seven months for clarification on the previous ruling.
“On the positive side, the merits of the case have not been heard yet, so we will be appealing to have the case heard by court as quickly as possible,” Famulak said.
She also stressed the coalition had no interest in challenging the collective agreement or any other areas where the LRB had jurisdiction.
“Our case has been and will continue to be about the minister’s decision – her statutory discretion – to implement an unfair and discriminatory policy that shuts out 85 per cent of the construction workforce from working on certain public infrastructure projects,” she said.
“There is no evidence that the minister considered the impact of her decision on the Charter rights of workers before implementing the government policy. Therein lies the infringement that needs to be heard in court,” Famulak added.
The coalition submitted a petition in 2018 stating the ministry of transportation was acting beyond its authority by entering agreements involving public works construction, while the provincial government argued the matter should be arbitrated by the Labour Relations Board (LRB). On July 23, 2019 the B.C. Supreme Court decided the matter would be heard by the court, but the most recent decision shifts the challenge back to the LRB.