Will you be ready when open period happens?

John Hyde
(Submitted Photo)

If you are a unionized construction employer in most parts of Canada, your operations and workforce could undergo significant changes during the 2022 open period. The term “open period” refers to the final months of a collective agreement’s term, during which various pieces of Canadian labour legislation open the door for potential big changes.

For unionized construction employers in Canada, the open period allows employees to apply for the termination of a union’s bargaining rights, and/or for a new union to displace the incumbent union through what is often referred to as a “raid.”

In light of the significant impact that either of these scenarios could have on the operations of their business, construction employers would be well served to be aware of several key points and facts regarding these open periods.

Open periods vary across Canada

While various pieces of Canadian labour legislation provide for open periods in the construction industry, they differ in a few ways.

For example, under Ontario’s Labour Relations Act, Alberta’s Labour Relations Code, and New Brunswick’s Industrial Relations Act, the open period occurs during the last two months of a construction collective agreement’s term. Meanwhile, the Canada Labour Code, which applies to the Yukon, Northwest Territories, and Nunavut, and Nova Scotia’s Trade Union Act, provide for an open period in the last three months of the agreement’s term.

Further, the open periods in Ontario and New Brunswick apply to collective agreements in force for three years or less, while Alberta’s open period relates to collective agreements with terms of two years or less.

In Ontario, the open period is fast approaching, and will begin on March 1, 2022 for many unionized construction employers. Meanwhile, British Columbia’s open period occurs in July and August of the collective agreement’s last year of operation.

Important legal considerations

It is important for employers to understand that they cannot bring their own applications to terminate collective bargaining rights, nor can they facilitate a new union’s raid. Rather, these processes can only be initiated by the employees of the company who no longer wish to be represented by the incumbent union, or the new union seeking bargaining rights.

As well, various Canadian labour statutes prohibit employers from interfering with the selection or administration of unions. That said, decertification or raid applications may be acrimonious even for employers who do not engage in any inappropriate conduct during either process.

There are a number of legal considerations at play when it comes to these processes, but perhaps one of the most contentious and complicated issues relates to the “status” of employees — determining who is deemed an “employee” and who performs a managerial role.

While this seems simple enough, Canada’s labour boards have demonstrated that the line between employee and management can become easily blurred, thus making the proper classification of an individual increasingly difficult. This becomes problematic in the case of union decertification because Canadian labour statutes also state that individuals who exercise managerial functions are not considered employees, meaning they are unable to bring such applications.

While we tend to think of managers as those who have the ability to hire, fire, or discipline employees, case law has broadened this definition.

As an illustration, the Ontario Labour Relations Board (OLRB) has discussed the question of whether an individual is an employee or member of management in a number of cases. In Ontario Pipe Trades Council (United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry) v Marsil Mechanical Inc, the OLRB stated that working foremen are generally considered bargaining unit employees, unless they have an overall responsibility for a project or possess the ability to affect the employment status of other workers.

As well, in Labourers’ International Union of North America v Circon Construction Corporation, Circon Design Build Corporation, the OLRB explained that an individual who serves as management’s “eyes and ears” on a construction project may indeed be considered managerial themselves. In this case, the OLRB also stated that such an individual need not have the aforementioned ability to hire, fire, or discipline others.

As a consequence, it is common for unionized construction employers to have workers who pay union dues, but who are nevertheless unable to bring decertification applications because they are considered members of management and not employees.

Advice to construction employers

In light of the significant changes that can occur during the open period, what can unionized construction companies do to protect their interests while staying on the right side of the law?

As has been stated, employers cannot initiate or encourage decertification applications or union raids. During the open period, employers should not engage in any conduct that could be interpreted as participating in a decertification or raid application. For example, employers should not:

• Hire an employee for the sole purpose of filing a union decertification application;
• Allow individuals from a rival union to engage with workers during working hours, or on the jobsite, so as to gain support for an application;
• Allow employees to utilize the employer’s office or other related spaces in order to gain support for an application;
• Allow employees to take advantage of office equipment or supplies while preparing and/or filing the application in question;
• Discuss the potential for decertification or a union raid with employees;
• Make unjustifiable decisions in relation to hiring, termination, layoff, discipline and compensation; and/or
• Deviate from the status quo in relation to employee meetings, breaks, and access to employer property.

In spite of an employer’s best intentions, the incumbent union will often still try to argue that there was employer involvement in an open period application.

While the aforementioned precautions are important, unionized construction employers should not sit on the sidelines during the open period. Rather, they should participate in a way that allows them to state their case while also conforming to the applicable labour laws of their jurisdiction.

For example, employers should stay informed about the decertification and raid processes in their province, understanding key aspects such as timelines and the requisite materials they must submit.

Furthermore, employers are within their rights to do the following during the open period:

• Truthfully respond to employee inquiries concerning terms and conditions of employment under the current collective agreement;
• Make statements regarding the current bargaining relationship with the incumbent union;
• Request that decertification and/or raids not be discussed during working hours, or on the worksite more generally; and
• Refrain from discussing decertification or raids with union representatives.

The bottom line

As should be clear, the open period for construction employers is a time at which great changes to their workforce and operations can occur. Furthermore, employers should know that both decertification and raid applications can be intricate, complex and fast-moving processes. Accordingly, employers who enter the open period unprepared and without the necessary knowledge of the type of behaviour they can or cannot engage in put themselves at a significant disadvantage.

For these reasons, we recommend that employers seek expert legal advice in construction labour relations prior to the open period in their jurisdiction.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.

He also assists clients in providing strategic legal and human resources advice on labour and employment matters arising out of complex mergers, acquisitions and the sale of businesses.

For more information about his firm or how to protect your construction company, please visit www.hydehrlaw.com.