#WorkLawWednesday: Challenge to Construction Project Collective Agreements has no “Merit”
Overview
The latest attempt by Merit Contractors Association to challenge union security clauses in construction collective agreements has fallen short. Merit Contractors represents non-union contractors who advocate for open shop contracting in the construction industry.
In Barry Millen, et al. v. Manitoba Hydro-Electric Board et al (February 2, 2017; case no. 37164)[1], the Supreme Court of Canada dismissed Merit’s application for leave to appeal from a decision of the Manitoba Court of Appeal. The Manitoba Court of Appeal upheld a decision of the Manitoba Court of Queen’s Bench to dismiss an action initiated by Merit and a group of non-union employees challenging the constitutionality of certain provisions in collective agreements covering Manitoba Hydro’s major construction projects[2]. The collective agreements (between Manitoba Hydro and a number of international building trade unions) required all workers on these major projects to join and pay dues to the union that represents their particular trade. Union shop provisions are common in construction project collective agreements in many jurisdictions, including Atlantic Canada.
Merit alleged that the union shop and union dues clauses violated non-union workers’ right to freedom of expression in s. 2(b) and freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms. They also challenged the provision of the Manitoba labour laws that require collective agreements to contain compulsory dues check-off.
The Manitoba Courts concluded that Merit and the other plaintiffs should have taken their dispute to the Manitoba Labour Relations Board, not to court. The Courts stated that any issue about the validity of a collective agreement, even an issue that included a Charter challenge, was within the exclusive jurisdiction of the Labour Relations Board.
Given that the Manitoba Courts did not address the substance of the alleged Charter violations, Merit could resurrect the issue at the labour board in Manitoba or through arbitration or labour board proceedings in other Canadian provinces. Building trade unions need to remain diligent in defending their long established right to negotiate collective agreement provisions that ensure workers on unionized construction projects join and contribute to the unions who have the legal obligation to represent workers on these projects. These provisions have enabled building trade unions to supply highly trained workers and enhance construction industry safety standards that benefit all workers.
For more information, please contact David Mombourquette.
#WorkLawWednesday: every second Wednesday Pink Larkin answers general questions about employment and human rights law. This is not intended to be legal advice and should not be relied on as legal advice