Journal of Commerce | Warren Frey | July 31, 2019
B.C. construction associations are celebrating a partial legal victory and planning next steps in their fight against the B.C. government’s community benefits agreement framework.
The BC Supreme Court passed judgement on June 23 in the case of Independent Contractors and Businesses Association (ICBA) vs. British Columbia (Transportation and Infrastructure) that part of ICBA and its associates petition will be heard by BC Supreme Court and not by the Labour Relations Board.
The petition was submitted in August 2018 by a group of construction associations, unions, businesses and individuals opposed to the provincial NDP government’s Community Benefits Agreement (CBA) framework, and claimed the framework violated the rights of workers to choose whether or not they wish to be a part of a union while working on government projects.
The petition claimed the ministry of transportation was overstepping its authority by entering into agreements for construction of public works, while the government argued the matter should be arbitrated by the Labour Relations Board, not the courts.
Our objection is to the Project Labour Agreement within B.C.’s CBA, which forces workers to join specific unions,— Chris Atchison – BC Construction Association
“When we went to court with the petition, the provincial government and building trades said this shouldn’t be in court and that we are challenging the collective agreement. We said we aren’t challenging the agreement, we’re challenging the improper exercise of ministerial authority,” ICBA president Chris Gardner said.
“We said this is the proper venue and the judge confirmed that view in his judgement yesterday,” he added. “We’re now applying for a hearing as quickly as we can to have this heard by B.C. Supreme Court.”
Government infrastructure projects such as the current widening of Highway 1 near Revelstoke, B.C. and future work on a Broadway Skytrain line in Vancouver and replacement of the Pattullo Bridge will, under the CBA framework, only hire and manage union workers on those projects through BC Infrastructure Benefits Inc., a new crown corporation.
“It’s unfair and discriminatory, and rather than technical arguments about jurisdiction, the government should be as eager as we are to the court review policy and make sure it’s within the authority of the minister,” Gardner said.
British Columbia Construction Association president Chris Atchison said he felt vindicated by the decision.
“It should be noted however that our group of petitioners is not opposed to community benefits agreements. We support community benefits such as local hiring, apprenticeship opportunities, and the increased acquisition and retention of equity-seeking participation on B.C.’s construction projects. Our objection is to the Project Labour Agreement within B.C.’s CBA, which forces workers to join specific unions as a condition of work,” Atchison said.
“We are confident that the B.C. Supreme Court will agree that it violates the right to freedom of association under the Canadian Charter of Rights and Freedoms, and that the Province does not have the legal authority to impose a ‘Building Trades Only Requirement’ on public construction projects,” he added.
Vancouver Regional Construction Association president Fiona Famulak said her organization is also pleased with the judge’s decision.
“We can now apply with our coalition partners to get a hearing to prevent the policy from being rolled out further,” Famulak said.
She added she has heard from members there is a “lack of clarity” on how the CBA framework will be implemented.
“For those companies that do choose to bid, there’s a lack of clarity around detail, so companies will price the risk, which adds to the cost of construction. CBAs also add red tape and bureaucracy to a worksite,” Famulak said.
“All roads lead to increased construction cost, which will need to be paid by B.C. taxpayers,” she said.
BC Building Trades executive director Tom Sigurdson held a different view regarding the judgement.
“I think their case is quite weak. The other three matters will be going to the Labour Relations Board,” Sigurdson said.
Besides the judgement that allows the petition’s request for an order of prohibition prohibiting the government from imposing the Building Trades Only Requirement on other projects to be heard by the court, claims for injunctive and declaratory relief in the petition were struck and “All other claims in the petition, including the claims for Charter remedies, are within the jurisdiction of the LRB and are to be struck or stayed,” the judgement stated.
The Allied Infrastructure and Related Construction Council of B.C. (AIRCC), the affiliated group of unions allowed to work on CBA projects, will be allowed to be added to the petition as a party respondent.
“If the relief in the petition is granted, AIRCC will lose the entire benefit of the CBA. Therefore, there are strong reasons that it be granted status as a party respondent,” the judgement stated.
“The only thing they have now is that the minister of transportation exceeded their authority, and they’re going back to court on what I think is thin evidence,” Sigurdson said.
Progressive Contractors Association president Paul de Jong said there is a need to impress upon the court and judge a need for haste, given the Illecillewaet project near Revelstoke is already over budget.
“It’s because the bidding group was smaller than normal and the price went up. We’re worried this will happen with the Pattullo Bridge, with Broadway, and other projects under the CBA framework,” de Jong said.
“It’s no longer hypothetical, the first project is underway and it’s a bellwether,” Famulak agreed. “It will cost $22 million more than the amount tendered in February 2019. It’s a good study and we’re watching it carefully because if the Pattullo Bridge escalates more than two times it will go to over $3 billion, with the cost borne by B.C. taxpayers.”
Gardner was optimistic progress will be made soon on the petition.
“We want to proceed with a hearing in September or October, and hopefully the judge’s schedule allows for that to happen,” he said.