The Construction Industry
The construction industry represents a large portion of the Alberta work force. Construction work moves from project to project and involves many different types of skilled employees. Collective bargaining in the construction industry is governed by a special part of the Labour Relations Code.
Under the Code's definition, construction work includes the construction, alteration, decoration, restoration or demolition of buildings, roads, pipelines and similar projects, but excludes maintenance work and the delivery of goods to a construction site (Section 1(g)).
As the term is used in the Code, not all work performed by construction tradespeople is construction work. Service and repair work, for example, are excluded from the Code's special construction provisions, although they are routinely performed by the same people who do construction work.
For the construction industry, the Board has a policy of certifying employees on the basis of employment skills. This means the Board will certify an employer's carpenters, plumbers, electricians or sheet metal workers, each in separate bargaining units.
This practice is followed because the large majority of trade unions representing construction workers are organized on craft lines (e.g., electricians in the electricians' union, plumbers in the plumbers' union). Bargaining in the construction industry generally follows the same craft breakdown.
There are many employers in the construction industry. The Labour Relations Code gives these employers the opportunity to form employers' organizations to bargain on their behalf with a group of trade unions within a particular trade and sector.
An employers' organization can apply to the Labour Relations Board for a registration certificate. As with trade union certification, an employers' organization, once registered, is authorized to bargain on behalf of all affected employers for a collective agreement that will be binding on all of them (Section 176).
An employers' organization can apply to be registered for a part of the construction industry. A "part" is a province-wide group of employers in one sector and in one trade jurisdiction. For example, an employers' organization could be registered to represent all the unionized employers in the province engaged in plumbing and pipefitting work within the general construction sector.
This would mean that the local unions representing plumbers and pipefitters throughout the province would bargain with the registered employers' organization acting on behalf of all unionized employers employing plumbers and pipefitters within the general construction sector of the industry. The result would be a collective agreement that covered all those employers and employees. As new employers become certified, they too are bound by the registration collective agreement and must comply with its terms.
Once registered, an employers' organization has a duty to fairly represent all affected employers whether or not they belong to the employers' organization. A registered employers' organization may choose to assess dues from employers bound by the registration collective agreement. Any such dues must be assessed uniformly and be reasonably related to the organization's duties under the Code. Unpaid dues may be collected by civil action (Section 165).
What is a trade jurisdiction?
A trade jurisdiction simply means a type of construction craft. The trade jurisdictions the Board uses to grant registration certificates reflect the various categories used in the apprenticeship program to define the various trades qualifications. These include carpenters, electricians, labourers, operating engineers and plumbers. The trade jurisdictions also reflect the definitions used by building trade unions to define which union has authority to represent a particular group of workers.
What is a sector?
A sector of the construction industry is defined by the type of project; the pipeline sector or the general construction sector, for example. There are now four construction sectors: pipeline construction; roadbuilding and heavy construction; general construction; and specialty construction. Some contractors restrict their activities to a particular sector, others operate in several.
How does an employers' organization become registered?
An employers' organization may apply to become a registered employers' organization in much the same way as a trade union can apply to become certified. It must have filed a constitution or bylaws with the Board (Section 164). The organization must have 40 per cent of employers in the relevant part of the construction industry as members (Section 167). When the Board receives an application it conducts an inquiry to determine whether the application is timely (considering any seasonal nature of the work) and whether the part of the industry claimed is an appropriate part for collective bargaining, and also whether the grouping of trade unions is appropriate.
If it is satisfied with these elements of the application, the Board will conduct a representation vote of the affected employers (Section 168).
An employer is only affected by a registration if it has a bargaining relationship with a building trade union listed in that registration. The relationship may arise through certification, voluntary recognition or by the employer agreeing to be bound by terms in a registration collective agreement.
If there is no relationship between the employer and a relevant building trade union, the employer will not be directly affected by registration. If there is a bargaining relationship, the employer will be affected. The employer will also be bound by any registration agreement negotiated by the registered employers' organization because, by law, that organization has authority to bargain on the employer's behalf.
An employer is only bound by a registration to the extent of the employer's bargaining obligations with the trade union (Section 176). For example, while registration is always province-wide, an employer may only have a bargaining relationship with a local trade union operating in a particular area. The effect of registration will be equally limited. The effect of registration is also limited by the scope of the registration certificate. It applies only to the employer's operations in the particular sector and trade jurisdiction listed in the certificate and not to any other operations the employer may be engaged in.
What if the employer has a bargaining relationship with a union, but there is no registration in place?
It is up to unionized employers operating in a part of the construction industry to decide, collectively, whether they want registration. If a majority choose registration, it then covers all employers, including any minority employers who may not want it. If the majority decides against registration, then all employers are free to make their own bargaining arrangements and are not affected by registration for that part of the industry.
This means that the employer and the trade union with which it has a bargaining relationship can deal with each other one-on-one. They can negotiate directly with each other for a collective agreement. If they cannot reach agreement, any strike or lockout action involves only the employees of the individual employer. Generally all the regular rules for non-construction bargaining apply.
If there is no registration in place, employers can still choose the less formal group bargaining available to all employers under the Code (Section 62). Unlike registration, where an employer is bound as a result of the choice of a majority of employers, it is an employer's choice whether or not to become involved in voluntary Section 62 group bargaining.
What happens when a construction employer becomes certified?
If there is no registration certificate in place the employer is like any other employer and the same procedures set out elsewhere in this guide apply.
When a construction employer becomes subject to certification by a union local for activities falling under a registration certificate, that employer is affected by registration. That means if a collective agreement is in effect, the employer is immediately bound by that agreement and must comply with its terms and conditions. If no agreement is in effect, the employees and employers become part of the dispute between the union and the registered employers' organization and join that dispute at whatever stage it has reached.
Can the registration of an employers' organization be cancelled?
Yes. The Code allows parties affected by registration to apply for termination. The Board will cancel a registration when it is satisfied the registered employers' organization no longer enjoys majority employer support. There are time limitations on when such an application can be made. If termination is granted while a collective agreement is in force, the agreement continues to bind the various employers and trade unions on an individual basis (Sections 181-182).
The Labour Relations Code provides that any agreement to which the construction industry provisions of the Code apply must expire on April 30 each second (odd-numbered) year. This creates a specific bargaining cycle within the industry, with all collective agreements coming up for renegotiation at the same time.
A strike or lockout affecting one trade can easily affect other trades working on the same project. The provisions in the Code are designed to reduce these disruptions while preserving free but orderly collective bargaining.
Some time before the start of bargaining, the Labour Relations Board holds a hearing and decides on a consolidation order. For the limited purpose of registration, this order consolidates trade union groups.
When registered trades are consolidated they still bargain independently of each other. However, strike votes and strikes must all occur at the same time. The same is true of lockout votes and lockouts. Industry-wide co-ordinating agencies may be formed but do not take part in bargaining (Section 193). By requiring consolidated action, the Code prevents a series of shutdowns in the industry, with one trade after another shutting down the same construction project.
When there is a registration in place, the trade unions cannot bargain directly with the employer; they can do so only with the registered employers' organization. On one side of the negotiating table will be the group of trade unions representing the employees in that sector and trade jurisdiction within the province; on the other side of the table will be the registered employers' organization, speaking on behalf of all the employers who have a bargaining relationship with those trade unions.
Construction bargaining between registered employers' organizations and groups of trade unions often involves many employees and employers. Before a strike or lockout can occur, a Board-supervised vote must be taken. No strike or lockout can legally occur until such a vote has been taken and has resulted in a vote in favour of either the strike or lockout.
Rather than take a separate strike or lockout vote for the employees or employers affected by each registration certificate, votes are supervised on a co-ordinated basis. A vote will not be conducted until at least 60 per cent of the groups of unions or registered employers' organizations grouped together in a consolidation order apply for a vote (excluding those groups that have already settled). These consolidation provisions only apply to unions and employers affected by registration.
Once the Board has a sufficient number of strike vote requests it will supervise one co-ordinated vote. Employees in each trade will be polled separately, but once their votes are counted those votes will be added together to give an industry-wide total.
For a strike vote to be carried, 60 per cent of the employees, overall, must be in favour of strike action. In addition, a majority of employees in each of 60 per cent of the trade union groups must also support strike action (Section 185).
By checking support on a union-by-union, as well as on an overall basis, the Code ensures strike action has industry-wide approval. The double majority test balances the influence of the larger and smaller trade unions in such an important decision.
Exactly the same rules and percentages apply to employers, should they wish to conduct a lockout vote and take lockout action.
Should a strike or lockout vote fail, the parties would be forced to resume their negotiations without taking strike or lockout action. They could take a new vote later if some or all of the agreements remained unsettled.
As with regular collective bargaining, no strike or lockout can take place without a notice and a supporting vote from the affected employers and employees. In the construction industry, there is an additional requirement: all unions or registered employers' organizations affected by a Board consolidation order must take such action together. This rule only affects those groups of unions and organizations that have not already arrived at a collective agreement. Once such consolidated strike or lockout action has been taken, each trade can still settle its dispute and go back to work, even though the remainder of the trades stay out on strike or lockout.
Once a registration strike or lockout has lasted 60 days, an individual employer can make an interim deal (called a "settlement") with the trade union (Section 82). That employer's work may then resume while the industry-wide dispute goes on. Such a settlement lasts only until the industry-wide agreement is concluded, or any shorter time the parties may have agreed upon.
Once 75 per cent of the registered employers' organizations and the groups of trade unions in a sector have settled their differences, the pattern of settlements is to some extent set. Recognizing this, the Code establishes a binding arbitration mechanism to settle the remaining disputes affected by registration in that sector. When settlements reach the 75-per-cent mark, the Minister of Employment and Immigration will refer the remaining disputes to a board called the construction industry disputes resolution tribunal.
The effect of this referral is to end any strikes or lockouts that may have started. The Code requires the parties to go back to work at the old rates until the disputes resolution tribunal has met and rendered its decision on the terms of the new agreements (Section 189).
Registration bargaining is province-wide. The Labour Relations Code allows an exception to this for certain major construction projects. An owner or principal contractor may apply to the Cabinet for authorization to bargain a collective agreement to apply only to the construction of that project.
If this approval is granted, the owner or principal contractor is given the authority to negotiate a collective agreement with the unions that will apply only to the contractors who work on the project. If the owner or principal contractor can negotiate such an agreement with the various building trade unions, work on that project will then be excluded from any registration bargaining and registration collective agreements for as long as the project agreements last. Neither the owner (or principal contractor) nor any trade union can try to force such an agreement by strike or lockout action. This provision simply gives an opportunity to bargain such a project agreement voluntarily (Section 197).
The rules for common employer declarations that apply to non-construction employers also apply to construction employers. There is an important modification.
The Labour Relations Board is not empowered to make a common employer declaration in respect of a corporation, partnership, person or association of persons that does not employ employees who perform work of the kind performed by members of the trade union that makes the application (Section 192(3)).
