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Proposed open tendering legislation comes down to a matter of fairness

Angela Gismondi
Proposed open tendering legislation comes down to a matter of fairness

The introduction of a bill by the Ontario government that would make tendering on publicly-funded construction contracts open to all qualified companies is drawing mixed reviews from the construction industry, with both sides agreeing it all comes down to one issue: fairness.

“It will be a game changer for fairness in Ontario’s construction industry and will ensure that all qualified companies and workers, regardless of their labour affiliation or lack thereof, can bid on these jobs,” said Sean Reid, vice-president and regional director of Ontario, for the Progressive Contractors Association of Canada (PCA).

“It’s about ensuring that every person who pays taxes into public infrastructure has the right, if they’re qualified, to work on those projects. That’s what this bill does.”

If passed, Bill 66, Restoring Ontario’s Competitiveness Act, would amend the Labour Relations Act and deem public bodies including municipalities, school boards, hospitals, colleges and universities as non-construction employers.

For years, certain public sector entities, including the Region of Waterloo and cities of Hamilton, Toronto and Sault Ste. Marie have been considered construction employers, which means they are restricted to accepting bids for infrastructure projects from certain unions they are affiliated with.

Mike Yorke, president and director of public affairs for the Carpenters’ District Council of Ontario, says the government is “attacking ordinary construction workers and their basic rights” as parts of the bill will eliminate construction bargaining rights and existing, long standing collective agreements. The council is calling on Premier Doug Ford and the government to take action and reverse that.

“Our members are working for different employers that would fall under this legislative change. We’re extremely concerned about their livelihood and the fact that their bargaining rights are now proposed to be stripped away without any consultation at all,” said Yorke.

“We certainly weren’t brought into this process at all. It came as a complete surprise. We were not asked our opinion about it and did not have the opportunity to have input at all. We believe that is a shortcoming in the legislation right up front, that there was no collaboration, no discussion with the broader industry on this. We certainly want an opportunity to contest it in a free and open debate.”

“The current laws concerning these types of employers and their relations with construction unions were put in place by the last Conservative Premier, Mike Harris, but even they apparently do not go far enough for Doug Ford.”

Yorke said the council will continue to fight, even if it means going beyond the labour board.

“The Supreme Court of Canada has made clear that the right to collective bargaining is protected by the Canadian Charter of Rights and Freedoms. If we have to go all the way to the Supreme Court in Ottawa to make Premier Ford’s government recognize this, then that is exactly what we are going to do,” he said.

Ian DeWaard, provincial director of the Christian Labour Association of Canada (CLAC), said he supports the government’s move to close the loophole that has restricted open bidding on major projects across the province and excluded non-union workers and members of independent unions from bidding on projects.

“It’s a needed change in the Labour Relations Act and it means that our members can now work on public projects that they were previously denied access to,” said DeWaard, adding CLAC has been advocating for this change for several years.

“Eighty-five per cent of our members when surveyed earlier this year said they believe they will get access to work they are currently not getting to because of closed tendering.”

As well as creating work opportunities for PCA’s members, the legislation would allow municipalities to maximize their infrastructure investments and save millions of dollars in infrastructure budgets every year, stated Reid.

According to PCA’s release, research conducted by the think-tank Cardus in 2018 showed that up to $2.5 billion worth of municipal construction work in Ontario each year is subject to construction labour monopolies.

Ontario Sewer and Watermain Construction Association (OSWCA) executive director Giovanni Cautillo said research shows restrictive tendering practices result in less competition and fewer bidders, which translates into higher bid prices.

“Open competition for publicly funded projects will ensure public buyers are getting the best prices and are being accountable to local taxpayers,” said Cautillo in an email to the Daily Commercial News, adding the majority of public buyers in Ontario are already operating on an open tendering model.

“For decades, both our union and non-union contractor members have successfully competed alongside each other to bid on, and build, public infrastructure in most communities across the province. The changes outlined in this bill will simply give every qualified contractor a fair shake, by allowing them to bid on work that is being funded from the public purse.”

Patrick Dillon, business manager of the Provincial Building and Construction Trades Council of Ontario, said the council has reached out to be available for consultation as it relates to labour relations, but the government has not taken them up on the offer.

“It seems that somehow they have a block in place that doesn’t allow that kind of consultation to take place,” said Dillon.

“I had a direct conversation with him (Ford) three weeks before he got elected. He said before he would make any moves around labour relations whatsoever, he would consult with us because he wanted to be able to work together and the exact opposite is what is coming out.”

The premier has been given misinformation about the potential savings for municipalities, he added.

“This thing that the municipalities are going to save all this money by ripping up collective bargaining rights of workers is absolutely misinformation at best,” said Dillon.

“One of the statistics that is available to the government…is in the construction sector the Building Trades’ unionized workers are seen as 23 per cent safer than the open shop competition. That’s a major savings to the municipalities that are using legitimate unionized Building Trades people.”

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