Canada: Unionized And Non-Unionized Management Rights In The Construction Industry: The Newfoundland And Labrador Snapshot

Has your Newfoundland-based construction company recently been certified by a union, or are you contemplating the use of a union subcontractor on your worksite? There are a number of unique features of the construction industry in Newfoundland and Labrador. This article will make you aware of just a few of them.

Province-wide "trade agreements" in the industrial-commercial sector

In a non-unionized environment, employers are generally free to determine their own terms of work, subject only to the general limitations created by labour standards, occupational health and safety, and the like.

In the unionized construction industry, to determine whether the province-wide trade agreement applies to you, you must first determine whether your business falls within the industrial-commercial sector. While other sectors could, in theory, also be certified on a province-wide basis, they have not been certified to date. So, if your construction business operates exclusively in the house building or road building sector, then the trade agreements are not applicable to you. To date, the industrial-commercial sector is the only division of the construction industry which is subject to province-wide trade agreements.

The Construction Labour Relations Association of Newfoundland and Labrador is the accredited bargaining agent in the industrial-commercial sector of the construction industry. It negotiates sector-wide collective agreements with the union local representing each trade. If you are employing unionized members of a certified trade within the industrial-commercial sector, then these trade agreements apply to your workplace and you must abide by their terms.

We have focused on the industrial-commercial sector of the construction industry for our comments about unionized workplaces below, since that is where the construction labour relations regime applies and significantly differs from other industries.

No multi-trade certification in industrial-commercial sector

In contrast to other provinces, in Newfoundland and Labrador there is no mechanism for "multi-trade" certification in the construction industry. If you are certified by a union local representing one trade (for instance, heavy equipment operators), the bargaining unit includes only those performing that trade's specified work. You are not obligated to follow the province-wide trade agreement for any other union local unless you are directly certified by them.

In addition, the trade agreements generally prohibit subcontracting to a non-unionized company within a specific trade. In other words, if you are certified only by the heavy equipment operators' union local, you may not subcontract your heavy equipment bargaining unit work to a non-unionized company, who would not be subject to the rates under the trade agreement. In any other trade, however, you are not so prohibited, unless you are certified by that particular trade.

Creation of the employment relationship

In a non-union hall, you may hire anyone at all, at any time, to perform the work that you direct. In the unionized world, however, the employer must hire workers in accordance with the applicable trade agreement. That agreement may stipulate that the employer has a "named" hiring right, but even then the employer may be limited by the union's input. The trade agreements may also carry limitations on where and how you may call workers back after a lay-off, and limitations on the use of non-union, non-Newfoundland, or non-Canadian workers.

In addition to directing who may be hired, the trade agreements also offer protection for junior workers. The trade agreements provide that employers must abide by specified ratios between the number of apprentices who must be hired for each journeyman employed on a job. On a non-unionized job site, you may hire as many workers of whatever qualification you deem necessary to complete the work that you require, provided you can find them in this relatively tight labour market.

Pay and remuneration

Most employers will be aware that the labour standards regime requires you to pay your employees at least twice monthly. Many non-unionized employees are paid on a biweekly pay cycle. The trade agreements typically require employers to pay workers on a weekly cycle. If you are certified, be sure to check the trade agreement to determine what is applicable for you.

Under the trade agreements, many differentiate between "hours earned" and "hours worked". That is, an employee may work for one hour of overtime at double time, and receive two hours earned for only one hour actually spent on the job site. The calculation of "hours earned" factors into many of the trade agreements, particularly in the area of employee benefits and pensions.

This is not the case for a non-unionized employee governed only by the labour standards regime, who earns, for instance, one hour's vacation pay whether the hour worked is overtime or regular time.

Layoff, termination, and notice

In the non-unionized context, most employees have an entitlement to reasonable notice of termination, but this is not so in the construction industry, even where more than 50 employees are laid off at one time. If the non-unionized employee feels that the employer is not living up to the requirements of the law, then he or she may only make application to the Director of Labour Standards, or commence a court proceeding. Either of these may entail costs to the employee.

A unionized employee who is terminated will have recourse through the grievance procedure found under the trade agreement, which is typically much more accessible – and inexpensive – for employees. They are guided in the grievance process by the union, and the employee will not be required to bear the cost of pursuing the grievance.

What this means to you

In most jurisdictions, the non-unionized environment provides employers with few limitations (other than those existing in individual employment contracts, employment standards, occupational health and safety, human rights or workers compensation statutes) in determining terms of work. If the company becomes unionized, the parties must operate within the ambit of local industrial relations legislation and any negotiated agreement between the company and the trade union representative. This article generally covers some of the rules in Newfoundland and Labrador that may be similar in other jurisdictions, but should remind readers that there is no uniform guide to this area of the law. When it comes to your organization, you must know the applicable rules and obligations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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