CBA challengers commit to fight policy following appeals court loss

Journal of Commerce | Russell Hixson | September 2, 2020

Opponents are not giving up despite a ruling from the B.C. Court of Appeal declining to hear a Charter of Rights and Freedoms challenge to the province’s Community Benefits Agreement (CBA) policy.

The case was brought forward by a group of construction industry advocates, including the Independent Contractors and Businesses Association (ICBA), Christian Labour Association of Canada (CLAC), the Progressive Contractors Association of Canada (PCA) and others.  

The ruling upholds a decision by the B.C. Supreme Court earlier this year that decided the charter case did not belong before the court and should instead be arbitrated by B.C.’s Labour Relations Board.

“As a coalition and an organization representing employers across Canada and in parts of B.C., we continue to see this CBA as setting a dangerous precedent,” said PCA president Paul de Jong. “The fact that the court has suggested this must be dealt with at the labour board doesn’t for a moment mean the case is over and we will be evaluating how we want to proceed.”

While de Jong said the PCA and its allies were committed to pursuing the legal challenge wherever needed, the issue was far bigger than the court case. 

“While this court case slowly moves forward, the vast majority of workers continue to be shut out of key projects unless they join a union of the government’s choice,” said de Jong. “As B.C. looks to recover from this pandemic, all workers should have the opportunity to work on these projects.”

The B.C. government has repeatedly stated that CBAs ensure local hiring as well as give underrepresented groups an opportunity to be part of these projects.

Projects such as the current widening of Highway 1 near Revelstoke 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.

De Jong added the PCA believes the CBAs’ lack of competition also pumps up project budgets at a time of historic economic turmoil. 

“The court’s decision does not deter us,” said de Jong. “We will continue to pursue this legally and continue to advise British Columbians that this flawed CBA is removing the rights of workers and costing taxpayers hundreds of millions of dollars.”

Ryan Bruce, CLAC’s B.C. director of government relations, said opponents were unhappy with the ruling and were meeting to plan their next steps 

“We were frustrated by Friday’s (Aug. 28) decision,” said Bruce. “We are two years in, and we haven’t got to the merits of the case. The only thing benign decided is the venue. We look forward to our day in court but don’t believe the labour board is the place to have the case heard.”

However, Bruce didn’t rule out going to the labour board as an option. 

“Regardless of if the case is heard or not, several things come to mind,” said Bruce. “One is the court of public opinion. Eighty-five per cent of workers in the construction industry are being left out. We know that’s unfair. People know that’s unfair. (B.C. Premier) John Horgan knows it’s unfair. During this time of economic recovery, we don’t think the government should be picking winners or losers. Take the advice of Dr. Bonnie Henry (provincial health officer): We are all in this together. These opportunities should be afforded to everybody.” 

Jordan Bateman, vice–president of communications and marketing for the ICBA, criticized the province, saying it has been dragging its feet to delay the case. 

“We are certainly reviewing our options with the Labour Relations Board and will be talking with our partners,” said Bateman. “The key in this case is that none of the merits of it have been examined in it yet. It was purely jurisdictional. Of course, we disagree with the court and believe the courts are the right place to challenge ministers’ decisions.”

The BC Building Trades noted the ruling marks the third time a charter challenge of the CBA framework has been struck down by the judicial system and higher courts have repeatedly dismissed charter challenges to similar labour agreements across Canada.

“Community Benefits Agreements are here to stay,” said Andrew Mercier, executive director of the BC Building Trades. “It has been made clear by all levels of the courts in B.C. that the proper course of action for the ICBA and their friends is to file their claim with the B.C. Labour Relations Board. They have consistently declined doing that. This is not an issue that rises to the level of the courts.”