August 9, 2017

Saskatchewan Court Rules on the “Build-Up Principle” in the Construction Industry

In a decision released on June 30, 2017 (the “Decision”), the Saskatchewan Court of Queen’s Bench has overturned a prior decision of the Saskatchewan Labour Relations Board which dismissed an application for certification concerning an all-employee unit in the construction industry on the basis of the “build-up principle”.  The full text of the Decision can be found here.
The build-up principle is an established labour relations principle which seeks to ensure the rights of future employees are respected where an application for certification is filed.  Generally the build-up principle addresses the concern that where a small number of employees exist at the time an application for certification is filed, such a group may not be representative of a larger group of employees where overwhelming or significant expansion is planned for in the near future.  Because of the fluctuating nature of the workforce within the construction industry, the Saskatchewan Labour Relations Board had, previously, endorsed the proposition that, in Saskatchewan, applying the build-up principle in the construction industry is generally inappropriate.
Nevertheless, the Board Decision applied the build-up principle to deny certification where the Employer had actually experienced a significant build-up between the date of the application and the date of the hearing.
The Court found that the Saskatchewan Labour Relations Board had fundamentally misapplied the “build-up principle” and violated the natural justice rights of the parties in the manner in which the original decision was reached.
Importantly, the Court clarified that the application of the build-up principle must be based on the facts and knowledge of the parties at the time of the certification application itself.  The Court found that the Board had improperly applied the test in the absence of any evidence before it concerning the knowledge of the Employer as of the date of the application.  Instead, the Board applied the test based on the actual events occurring after the application date.
By way of remedy the Court quashed the Board’s decision, and ordered the Board to certify the union.
If you have any questions about this topic or any other topics relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
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