Construction and Land Development Sector Team called for changes to labour legislation; SCA demanded “immediate meeting” with Norris

On November 18, 2008, Enterprise Saskatchewan (ES), the province’s economic development agency, officially launched 18 sector teams specifically dedicated to an economic sector of the Saskatchewan economy.

The sector teams are accountable for identifying and reporting on the barriers to growth, making recommendations to remove barriers, prescribing prioritized action, and reporting on the progress on an annual basis to the ES board.

The sector teams are industry-led and typically include seven to nine members from their respective sector, many of whom are Saskatchewan Party supporters and contributors. Several of the sector teams were already up and running when the official announcement was made. One such team is the Construction and Land Development Sector Team. The members of the team in November 2008 were:

Mr. Ron Shirkey Q.C. (Chair), Shirkey & Company
Mr. Muir Barber, Pinnacle Developments Inc.
Mr. Allan Didur, Realty Executives
Mr. Erick Erickson, Saskatchewan Construction Association
Mr. Perry Friesen, Westridge Construction Ltd.
Mr. Dale Griesser, Avison Young
Ms. Rosanne Hill-Blaisdell, Harvard Developments Inc.
Mr. Tom McClocklin, Colliers International – Saskatoon
Mr. Paul McLellan, Alliance Energy Ltd.

Every member of the team, with the exception of Muir Barber, appears to either work for or represent a business or industry association that made a financial contribution to the Saskatchewan Party between 2006 and 2008:

▪ Ron Shirkey – $825.00; Shirkey & Company – $1,203.98
▪ Realty Executives Saskatoon – $1,670.40
▪ Graham Construction (Erick Erickson) – $22,258.96
▪ Westridge Construction Ltd. – $13,486.76
▪ Avison Young – $6,715.60
▪ Harvard Developments Inc. – $5,402.90
▪ Colliers McClocklin – $5,072.80
▪ James (Paul) McLellan – $1,500.00; Alliance Energy – $19,509.56

Former Enterprise and Innovation Minister Lyle Stewart spoke glowingly of the sector teams, touting the importance of private sector involvement in the decision making process.

“These sector teams will be pivotal in positioning Saskatchewan as a jurisdiction that is competitive, investment friendly, enterprising and entrepreneurial,” Stewart said in a news release on the day of the launch. “Saskatchewan’s economy is on a roll, and we need to identify and seize opportunities now in order to keep pushing our competitive envelope. Sector team members represent the key elements of important sectors of our economy and bring valuable expertise to the decision-making table.”

Stewart declared: “This is the ultimate participation model for private sector involvement.”

The Leader-Post reported Stewart as saying “by the end of the year that we’ll start to see the recommendations coming to the Enterprise Saskatchewan board.”

Each team member will be paid $110 when they meet about once a month, Stewart said. The team’s chair will receive $155. [Province seeks advice from private sector (Leader-Post, November 19, 2008)]

So important were the sector teams that Premier Brad Wall met with the team chairs and Enterprise Saskatchewan board at a special luncheon at the Legislative Building on November 18, 2008.

According to the premier’s speaking notes, which were obtained through a freedom of information request, Wall told the group: “[W]hat our government needs from you – the sector teams – are the imaginative and creative ideas to make sure we are even more competitive – as competitive as possible.

“Leave it to us – myself and Minister Gantefoer – to deliver the message of consistency and prudence – you need to, with some urgency, come up with a plan for maintaining Saskatchewan’s competitive position.

“It’s time for the sector teams to get busy,” Wall said.

And busy the Construction and Land Development Sector Team got, conducting just four meetings through December 31, 2009.

The sector team held its first meeting on November 3, 2008. The meeting minutes, obtained from ES through a freedom of information request, indicates that discussion was held on the strengths and weaknesses of the construction and land development sector, as well as the opportunities and barriers to economic development.

Team members identified 11 barriers for further consideration. Among them were: shortage of skilled labour, restrictive labour legislation, real or perceived environment that’s unfriendly to business (regulations, taxes, etc.), and lack of public and private partnerships (P3).

At the second meeting, held December 11, 2008, the sector team began a “gap analysis” of the barriers faced by the construction and land development sector. The team wrote two goals for this sector, with actions and recommendations to ES.

Goal #1: To create the most competitive location in North America for attracting and retaining skilled immigrants.

Goal #2: To have labour legislation that is competitive to other western Canadian jurisdictions.

With respect to the second goal, the sector team determined that a competitiveness analysis was needed of labour legislation and rulings in all western provinces, including the Trade Union Act.

The team prepared the following recommendation: “The Enterprise Saskatchewan Board direct ES to undertake a competitiveness analysis of current labour legislation and rulings. ES should engage with the Sector Team to create the terms of reference for this analysis.”

One of the more telling pieces of information in the minutes is on the last page under the heading Actions and Next Steps. It’s here that we see where the discussion is headed, at least in terms of labour legislation. Erick Erickson, representing the Saskatchewan Construction Association (SCA), was to bring forward, for information purposes, the association’s “analysis of the Act and of trade positions needed in the future.” Presumably the legislation in question was the Trade Union Act.

The minutes for the third meeting, held February 5, 2009, notes that the sector team was still waiting for a response from ES to its recommendation concerning labour legislation/regulations.

“The sector team would like to see any available information and have the time to consider it; the recommendation for ES to engage the sector team in any future study terms of reference still stands,” the minutes state.

“There is a desire for action on the issue of labour legislation/regulations in a timely manner.”

Two items were then distributed to the sector team: “Letter to Rob Norris, Minister of AEEL from the Saskatchewan Construction Association, and Brief by PCL on Saskatchewan Labour Issues. The restrictions in the working environment are an ongoing issue that these two handouts address.”

The minutes do not say where the documents came from, but the assumption is they may have been supplied by SCA representative Erick Erickson.

The sector team continued with its gap analysis whittling its list of barriers down to six. The top two were shortage of labour and restrictive labour legislation. The team also requested “an update from [ES CEO] Dale Botting and Enterprise Saskatchewan about Saskatchewan’s competitive position in labour laws and legislation and report back to the Sector Team.”

In response to a separate freedom of information request, ES on March 29, 2010, granted full access to copies of the SCA letter to AEEL Minister Rob Norris and brief by PCL Construction Management Inc.

However, ES warned in the cover letter: “With respect to the Saskatchewan Construction Association (SCA) letter, Mr. Michael Fougere, President, SCA, has informed us this is not an official copy of his letter. As you can see, the record is not on letterhead nor does not have Mr. Fougere’s signature.”

ES goes on to say that the PCL “document dated January 2009 may be an earlier draft of a submission made in June 2009 by Mr. Kris Hildebrand, Saskatchewan District Manager, PCL, to the Standing Committee on Human Services related to Bill No. 80 – The Construction Industry Labour Relations Amendment Act, 2009.”

Finally, some connections to Bill 80 were emerging.

Fougere’s ‘unofficial’ letter is dated October 10, 2008. This is important because little is known about what went on behind the scenes prior to the Wall government introducing Bill 80 in the legislature on March 10, 2009. Fougere’s letter pre-dates by more than four months two pieces of correspondence sent by the Saskatchewan Chamber of Commerce to Minister Norris whining about similar issues. The coincidences are too strong to ignore.

In his letter, Fougere rails against a Saskatchewan Labour Relations Board (LRB) decision two weeks earlier (LRB 019-05, September 23, 2008) concerning Saunders Electric Ltd.

“In this decision, the LRB has recognized a union agreement that is over 20 years old, even though the agreement is inactive and the employees and current owner of the company have changed. As a result of this decision, Saunders Electric must pay union dues dating back to 1984,” Fougere said, adding that the decision “will in all likelihood force the owners out of business.”

“This decision of the LRB has major implications, not just for Saunders Electric, but for the entire construction industry. If not reversed, this decision will have a chilling effect on investment and economic development across our province.

“The SCA and our member companies are demanding a quick and final remedy to this unprecedented threat to our industry and our members,” Fougere said, without offering any evidence to support his hysterical claim that the ruling endangers the provincial economy.

In the second half of his ‘unofficial’ letter, Fougere abruptly switches gears and starts talking about “the right of employees to choose the union to represent them” and demanding the Wall government end “the monopoly of the Building Trades in the construction industry.” Then it’s back to the LRB ruling.

“The decision of the LRB is one of the most serious threats to our industry and, by extension, to the provincial economy. The SCA is calling on the government to make the necessary legislative changes to bring balance and fairness to our industry by implementing fair abandonment rules and ensuring the freedom of choice for employees to choose which union they wish to represent their interests.

“The issues raised in this letter are of grave concern to our members. We are requesting an immediate meeting with you and your officials as a first step in resolving the issues facing our industry.”

Clearly, the seeds for Bill 80 were being planted.

It should be noted that Fougere is not only president of the SCA he is also a member of the ES board of directors. It would seem the SCA was using ES and the sector team to further its agenda.

Incidentally, the LRB reconsidered its decision in the Saunders Electric case in its decision dated November 6, 2009. The original application was dismissed and certification order rescinded. The heavy hammer of legislation was not required and the province did not implode because of the earlier ruling. And yet, Bill 80 remains.

Truth be told, the last twelve months have shown that the provincial economy has more to fear from Premier Brad Wall and Finance Minister Rod Gantefoer than it does the labour relations board.

The brief by PCL echoes the SCA stating “it is imperative that the Saskatchewan Government move immediately to introduce balanced and fair legislation that will ensure Saskatchewan’s labour environment respects the rights of workers and employers and is competitive with other Canadian jurisdictions.” PCL recommended, as a minimum, the following amendments to existing labour legislation:

▪ Recognition of the principle of abandonment in the construction industry.

▪ Allow employees to choose whether they wish to belong to a traditional union (Building Trades) or to a non-traditional union (wall-to-wall).

▪ Re-introduce the right of employers in the construction industry to choose the employer organization they wish to represent them and make membership in any employer organization voluntary.

PCL, by the way, are a big contributor to the Saskatchewan Party. For the six year period from 2003 to 2008 the company donated at least $51,921.99 to the political party.

Fougere’s and PCL’s self-serving propaganda neglects to mention that the construction industry has not had a work stoppage in more than 17 years. Construction in the province, as reflected in building permits, set an all-time record of $2.18 billion in 2008, up by one-third when compared to 2007. Even amidst the global economic downtown building permits in 2009 were $1.89 billion – good for the second highest total ever.

When introducing the amendments on March 10, 2009, AEEL Minister Rob Norris stated at a news conference that Bill 80 is necessary “first and foremost [for] the choice for employees.” But Bill 80 does not expand choice for workers. On the contrary, it is about allowing contractors to pick the union they want to deal with. And if workers don’t like it, that’s too bad. Under Bill 80, workers cannot decertify the union picked by the employer. The choice left for the employee is simple: take it or leave it. That is no choice at all.

At the fourth sector team meeting, held March 2, 2009, the minutes state that team members “discussed various aspects of the current labour situation in Saskatchewan as it affects the Construction and Land Development sector and agreed that the important issues are abandonment and alternate unions.”

A three-page handout about labour certifications was distributed. The material is dated June 11, 2008, and several points were highlighted by the chair, Ron Shirkey, as follows:

▪ Over the last six years, over 94% of certification requests brought before the Saskatchewan Labour Relations Board were successful, compared to an average of 69% in British Columbia, Alberta, and Manitoba.

▪ Over the last six years, only 59% of the applications for revocation have been granted in Saskatchewan (compared to 80% of applications in British Columbia, Alberta, and Manitoba).

▪ In Saskatchewan, 45% support is required for certification vote in 2008, which is up from 25% in 2007. And a secret ballot vote is also now required.

▪ And in point #7 on page 3, “The amendments that have recently been made to the Trade Union Act put Saskatchewan more in line with the requirements for certification in the other western provinces.”

According to the minutes, Shirkey “suggested that an experienced labour lawyer would be a good person to speak to this Sector Team. Comments from the team indicate the desire for a way to deal with what constitutes an unfair labour practice (e.g. work stoppage rules are different in Saskatchewan than in other provinces). The “Privative Clause” means that the Labour Relations Board (LRB) is the final decider in these things (confirmed at http://www.duhaime.org/LegalDictionary/P/PrivativeClause.aspx).”

The sector team “recognizes that the issues of abandonment and alternate unions are important and well understood issues. However, the details of the Trade Union Act are outside the purview of this Team and should be discussed by the appropriate government officials.”

The final results of the sector team’s gap analysis show a total of five barriers. Topping the list is restrictive labour legislation, which somehow managed to replace shortage of labour as the number one barrier facing the construction and land development sector.

The minutes indicate that the chair was to prepare draft recommendations for policy from the gap analysis; and, to write an executive summary, distribute to the rest of the team by March 20, 2009, and solicit feedback by March 31, 2009. The chair and one team member would present the recommendations to the ES board in April 2009.

However, the ES board’s September 2009 progress report notes that between April 1, 2009, and September 30, 2009, the board received presentations and recommendations from 11 sector teams and strategic issues councils. Construction and Land Development was not among them. It remains unclear why this sector team was not included. The team did not meet again in 2009.