Since the Supreme Court of Canada afforded constitutional protecting to the right to collectively bargain, numerous courts, tribunals, adjudicators and academics have strived to give meaning to this right and define the scope of its protection. Following this trend, the Ontario Court of Appeal further clarified the law when it upheld the constitutionality of the “non-construction employer” provisions of the Labour Relations Act (“LRA”).
In this case, the Independent Electricity System Operator (the “IESO”) brought an application seeking to be declared a “non-construction employer” pursuant to the LRA. In response, the unions challenged the constitutionality of this provision as being contrary to the freedom of association as protected by s. 2(d) of the Charter.
In essence, an employer whose primary business is not construction may apply to the Ontario Labour Relations Board (the “Board”) to be declared a “non-construction employer”. Under s. 127.2 of the LRA, if such a declaration is granted the Board is obliged to declare that any trade union that represents, or may represent construction employees of that employer no longer represents them. Further, the employer is released from any collective agreement binding the employer insofar as it relates to the construction industry.
In the Independent Electricity System Operator decision, the Board found that s. 127.2 of the LRA had the effect of nullifying all existing provisions of the collective agreements and terminated existing bargaining rights, thereby removing the union’s right to represent the construction employees and bargain over their terms and conditions of employment. The Board held that this constituted a substantial interference with the freedom of association under the Charter and was therefore unconstitutional. The Board’s decision was overturned by the Divisional Court and subsequently appealed to the Court of Appeal.
The Court of Appeal reviewed the recent Supreme Court of Canada decisions in BC Health Services and Fraser and confirmed that “s. 2(d) does not protect access to a particular statutory process or the fruits of bargaining”. Rather, the freedom of association only protects the right to engage in a collective process that allows employees to make representations and have them considered in good faith by employers, who in turn must engage in a process of meaningful discussion. In short, a declaration under s. 127.2 could only constitute a violation of s. 2(d) of the Charter if its intent or effect was to “substantially interfere” with workers’ ability to collectively pursue the negotiation of common goals regarding workplace conditions or terms of employment with their employer.
The Court of Appeal indicated that by enacting the non-construction employer provisions, the Legislature clearly indicated that the specialized construction provisions are inappropriate for non-construction employers. Since s. 127.2 only restricted access to a particular statutory scheme – the specialized construction provisions – and employees would otherwise continue to have access to the general provisions of the LRA, the Court of Appeal concluded that the provision did not offend the Charter.
This decision does not end the freedom of association debate, by any means. However, it is refreshing to see the courts exercise restraint in such cases so as to avoid extending constitutional protection to particular labour relations schemes.
If you have any questions about non-construction employer declarations, or any other questions relating to the specialized labour relations scheme applicable to the construction industry, please do not hesitate to contact a Mathews Dinsdale lawyer.
For more information on new developments in Workplace Law, please refer to our website at: http://www.mathewsdinsdale.com/news-events/in-a-flash/