In the private sector, open competition is the preferred option to ensure bidders do their utmost to present a fair price.
With $2 billion a year in transit spending on the table, you’d think governments would want competitive bids, especially if they’re already crying poor and testing the dangerous waters of higher tax burdens.
Unfortunately, as it stands not every Greater Toronto Area contractor can bid on the Big Move transit extravaganza because Toronto and some other jurisdictions are closed shops.
The issue dates to a 2009 ruling by the Ontario Labour Relations Board in
Independent Electricity Market Operator v. Canadian Union of Skilled Workers on ss. 126 and 127 of the Ontario Labour Relations Act.
The issue is over what constitutes a non-construction employer. The ruling has had the effect of declaring school boards and municipalities in areas like Toronto and Hamilton, Ont., as construction employers and requiring them to deal only with contractors with collective agreements with specific unions.
As Hamilton-based labour lawyer Stephen McArthur of McArthur Vereschagin & Brown LLP explains, the Divisional Court overturned the 2009 decision and the Ontario Court of Appeal dismissed a subsequent appeal. The Supreme Court of Canada also declined to hear the matter.
But the ruling lives on in practice. Last December, two Region of Waterloo, Ont., employees who were members of the Canadian Union of Public Employees Local 1656 were assigned on a Saturday to build a shed. That day, they signed cards to join the United Brotherhood of Carpenters and Joiners. With two workers on site, it was a 100-per-cent vote even though they belonged to a local with more than 200 members. The carpenters have since filed to have the region declared a closed shop.
McArthur says the labour relations board will have to focus again on the issue of non-construction versus construction employers.
At the time, he said, it relied on the
Health Services and Support — Facilities Subsector Bargaining Association v. British Columbia ruling in which the Supreme Court of Canada recognized a constitutional protection for collective bargaining. But this time, it will also have to consider the Ontario Court of Appeal’s decision on the issue. How the labour relations board deals with the Waterloo application is significant. With $34 billion in spending on transit lines planned over the next decade or so, some groups claim the issue could cost hundreds of millions of dollars due to limited competition.
With Premier Kathleen Wynne and NDP Leader Andrea Horwath beholden to organized labour, Kitchener-Conestoga Conservative MPP Michael Harris has tabled a private member’s bill to clean up the language.
Theoretically, it may not be necessary since, as McArthur points out, the Court of Appeal decision throws the matter back to the labour relations board. On the other hand, the board could, as Harris fears, just fall back on its own position and force the parties back to the Divisional Court.
Harris says his legislation could save municipalities and school boards millions of dollars. “This is not union versus non-union,” says Harris. “This is about fairness.”
Harris notes 27 contractors are eligible to bid on the $320-million wastewater plant upgrade in Kitchener, Ont. If the closed-shop interpretation prevails, only two contractors will be eligible.
It’s all evidence of the lack of attention to detail that has been a signature of this government. After squandering billions on cancelled gas plants, all-day kindergarten, eHealth Ontario, and Ornge, Wynne is now turning to new taxes to fund transit. It would be more politically astute, however, to look at all program spending and prioritize a strategy accordingly using all of the tools available such as cutting costs before seeking new revenues.
Ian Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is [email protected].
