What is Construction Labour Law?
Construction Labour Law is a specialized area of labour law, so unique that almost 1/3 of the entire Labour Relations Act of Ontario (sections 126-168), is exclusively dedicated to it.
What makes Construction Labour Law unique?
In short, it is tied to the "business realities" of the construction industry. As the Ontario Labour Relations Board recently stated:
"The construction industry was never and is not now similar to the typical industrial context (whether it be manufacturing or resource allocation and arguably until recently the service sector)."
What does this mean? Here are some examples:
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In Construction, there is never a sizable group of employees hired by a single employer to work regularly and indefinitely in a particular place of business- unlike a plant, mine, or restaurant.
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The construction industry is organized and structured differently. Usually, owners of property hire construction industry employers for specific projects or assignments. The projects or assignments are not necessarily done in one shot, but may be undertaken at different stages over time, using numerous and distinct skill sets and, varying numbers of employees.
- Employment in the construction industry is transitory. It is not really "steady", because employees can move from one project or assignment to another project or assignment. They can move regularly from employer to employer depending upon availability and location of work.
For these reasons, and many more, the construction industry is unique, and it requires a specialized set of labour laws.
How are construction companies unionized?
The answer may surprise you. Did you know that, in determining whether a construction company becomes unionized, the Ontario Labour Relations Board ("OLRB") is only interested in those employees (who do the kind of job described in 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?
For example, you may have over 100 non-managerial employees in your construction 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. The other 98 employees have no say in the matter - they automatically become union members.
What should a construction company do if it receives an application for certification from a union?
You must act fast. Legal advice is critical. Seek a Construction Labour Lawyer immediately!
Did you know that when an Ontario construction company receives an Application for Certification from a union, it only has 2 business days to fully respond to the Ontario Labour Relations Board? The response must include a detailed representation stating the names of all the 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, and 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 OLRB will usually not permit the company to add them after the fact.
Why is this important?
It's a numbers game. Union certification in Ontario is often card-based. If greater than 55% of the employees subject to the union's application were working on the application sate (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 very little time to react.
Construction Labour Law in Ontario gives the unions an edge over employers, particularly if they do not have specialized legal advice.
What is a Union "Salt"?
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 OLRB 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 and deceit. Construction Labour Law allows it.
What can you learn from this?
If your company receives a resume from a job applicant that seems "too good to be true", it probably is. DIG DEEPER - contact past employers for references, have someone conduct an OLRB caselaw search to see if the applicant's name comes up as an organizer in previous cases. You might be hiring a UNION ORGANIZER.
How can Hyde HR Law help my company?
Just because a lawyer or law firm may advertise representation in Labour Law disputes, it does not mean that they practice Construction Labour Law - and for those that do practice Construction Labour Law, their work is highly specialized.
Hyde HR Law does Construction Labour Law every day. We fight unions on behalf of construction company clients and have built a strong reputation as experts in our field. Contact us today.
