Construction Labour Law

 

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Construction Labour Law

Just because a lawyer or law firm may advertise representation in Labour Law, that does not mean they practice Construction Labour Law- and for those that do practice Construction Labour Law, very few of them do it well. After all, as recognized by the Labour Board, the construction industry demands a very different and highly specialized area of labour law- there is no room for inexperience.

 

Here are a few examples:
Did you know in determining whether your Company becomes unionized, the Law is only interested in those employees (who do the kind of job subject to the union’s application), who were at work on the Application Date (the date the labour union applies to the Ontario Labour Relations Board for certification)?

 

What does this mean?

You may have over 100 non-managerial employees in your Company who do the same kind of a construction work. Let’s say that on the Application Date, you have only 2 of those employees working in the geographic area covered by the Application, and both of those employees have signed union membership cards in the recent past. The Ontario Labour Relations Board will certify the Union as the representative of all 100 employees. There is no vote in this particular case, as the certification is card-based.

Did you know that when a construction company in Ontario receives an Application for Certification sent by a union, it only has 2 business days to respond in full to the Ontario Labour Relations Board? The response must include a detailed representation stating the names of all the non-managerial construction employees who were at work for the Company on the Application Date, and who were doing the kind of work claimed by the union in the geographic areas covered by the Application. It must also include a detailed description of all the work they were doing on that specific date, and the location where they were doing such work. If the Company fails to include some of the employees in its list, the Labour Board will usually not permit the Company to add them after the fact.

 

Why is this important? It is a numbers game.

Union certification in Ontario is often card-based. If greater than 55% of the non-managerial employees subject to the union’s application were working on the Application Date (in the geographic area covered by the Application), and had already signed cards (and/or were union members), the Company is “unionized”. It is that simple. If the union can demonstrate support of 40% but less than 55% of the non-managerial employees in the proposed bargaining unit, a secret ballot vote will be held. The vote usually takes place within 5 days of the Application Date. There is little time to react.

Did you know that unions hire and train organizers whose sole job is to apply to your Company, pretending to be a worker?

Once employed (even for 1 day-provided it was the Application Date), the Labour Board will accept that employee for the purposes of counting his or her membership card, or entitling him or her to vote. It does not matter that this person (recognized as a union “SALT”) has a full-time job organizing for the union, nor does it matter that the employee will not have any kind of continued relationship with you, after the certification. It does not even matter if your Company paid the employee in cash. Most employers call this fraud, deceit and/or misrepresentation. The Labour Board calls it “acceptable”.

Did you know that at the heels of the majority of certification applications filed in the construction industry, unions will follow with an Unfair Labour Practice Complaint against the Company, often seeking penalty certification for alleged wrongful acts of management?

Most of these complaints have no merit whatsoever, and the Unions know it. They are made however, to place pressure on management, to force acceptance of the certification attempt, and as a last ditch effort to seek certification even though the union does not have sufficient support.

Did you know that in securing union support and employee card signing, union representatives can and do lie to employees, and make promises they are absolutely not empowered to keep?

This usually does not affect the voluntariness or the legality of the card signing. Some Labour Board decisions have called the actions of such union organizers, mere “puffery” and “salesmanship”, but it is not illegal, and it does not affect the legitimacy of a signed union membership card.

This is only a partial list of the legal hurdles faced by Construction Employers in Ontario. As you can see, the Company response must be quick, accurate and strategic: there is no room for error.

 

WARNING TO THE UNWARY:
Choose your management-side labour lawyer carefully.

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