Connect

Legal News

Court rejects skytrain charter claim
June 23, 2000

A recent court decision involving the Skytrain extension marks the latest battle in a long standing dispute over the contracting of major construction projects by the provincial government. In CLAC and GWU v. BC Transportation Financing Authority et. al., the Christian Labour Association of Canada (CLAC) and the General Workers Union (GWU) mounted a challenge under the Charter of Rights and Freedoms to the way in which more than a billion dollars of Skytrain construction was contracted. They asserted that their members’ rights to freedom of association were contravened. (click for full decision)

The supply of labour was given to Highway Constructors Ltd., a body established by the provincial government to act as contractor on the Island Highway project. Highway Constructors has an agreement with the building trades unions that are members of the BC & Yukon Building Trades Council (BCYT) to use only members of those unions in construction.

Highway Constructors was based on the Hydro Constructors model. Decades ago, when the provincial government embarked on a series of huge hydroelectric dam projects. At that time, no single contractor operating in the province was large enough to take on the prime contract. Additionally, there was a need to ensure that the projects were not affected by strikes. A system was developed by which Hydro Constructors was formed to act as the prime contractor and the employer of all construction workers. The various subcontractors were required to use employees of Hydro Constructors. Hydro Constructors entered into project agreements with the various building trades unions that ensured the projects would not be affected by construction industry strikes.

At the time this approach was developed, there no significant non-union sector in major construction of any kind, nor had “wall to wall” unions come into existence. The latter are unions who represent all construction employees of all trades and are certified by the Labour Relations Board for all employee bargaining units instead of craft units. CLAC and GWU are two of the most successful wall to wall unions.

Since then, both non-union contractors and those with wall to wall unions have taken a significant share of major construction project and union contractors with wall to wall unions have performed many construction projects tendered by government.

In a recent decision, Vertex Construction Services,BCLRB No. B122/2000, the Labour Relations Board commented on this phenomenon, noting that from 1988 to 1996, building trades certified contractors had dropped from 40 percent of the construction industry payroll to 27 percent. Over the same period, wall to wall unions such as CLAC had increased their share from 2 to 4 percent. The increase in the non-union share of the payroll had been far more significant, going from 57 percent to 69 percent. The Board concluded that despite the building trades unions’ pre-occupation with the wall to wall unions, their real challenge was the significant growth of the non-union sector.

Despite the fact that the Labour Relations Board has repeatedly found the wall to wall unions to be trade unions under the our labour laws, the building trades unions and the BC Federation of Labour consider them to be outside the house of labour and have displayed considerable antagonism towards them, referring to them pejoratively as “rat unions”. Some critics have suggested that the provincial government has responded to this by establishing a system for the tendering of major construction projects that would exclude wall to wall unions.

Although the construction industry has changed dramatically since the early hydroelectric projects, the provincial government adopted a similar model for the Island Highway project. Highway Constructors was given the contract to build the highway. An agreement between Highway Constructors and the building trades unions was made before any construction workers were hired. Subcontractors who performed all actual construction had to use Highway Constructors employees. This effectively eliminated access to project work not only to non-union contractors and construction workers, but also to the wall to wall unions such as CLAC and GWU. As a result, all construction workers on the various island highways phases had to be members of the traditional building trades unions and pay dues and remittances to them, regardless of what union held the certification for the contractor’s employees.

In a series of Labour Relations Board cases, some wall to wall unions and other parties challenged this system on a number of grounds. The Board dismissed these challenges.

More recently, the crown corporation established to build the more than billion dollar Skytrain extension project handed the supply of labour over to Highway Constructors under a “Labour Force Agreement”. This ensured that all construction workers would have to be members of the BCYT affiliated building trades unions as on the Island Highway project.

CLAC and GWU went to the BC Supreme Court claiming that the scheme amounts to government contravention of their members’ rights to freedom of association under the Charter of Rights and Freedoms. The issue was not decided on its merits. Instead, the Court ruled that the plaintiffs were not entitled to pursue the issue on behalf of their members, and that such rights must be pursued by the individual construction workers concerned.

(Click here for copy of full Decision)