Premier Brad Wall and cabinet held closed-door meeting with Saskatchewan Construction Association prior to drafting Bill 80

AEEL Minister Rob Norris (center)
with SCA president Michael Fougere (right)
at private meeting on Nov. 26, 2008

Fougere making presentation to cabinet on Nov. 26, 2008

Three months prior to introducing amendments to the Construction Industry Labour Relations Act, Advanced Education, Employment and Labour (AEEL) Minister Rob Norris wrote to the Saskatchewan Construction Association (SCA) basically telling them not to worry about a recent Labour Relations Board decision affecting the construction industry, the government would take care of it.

“I understand your concerns about the implications for this sector and appreciate the urgency in addressing the matter,” Norris said in a November 19, 2008, letter to association president Michael Fougere. “The Board is an impartial quasi-judicial tribunal that functions at arm’s length from government. It must operate free from influence in order to do its job fairly and successfully. Therefore, it would be inappropriate for me to comment on any cases currently before the Board, or on particular Board decisions.

“However, it is important to note that our government is committed to reviewing Saskatchewan’s labour legislation to ensure that it is fair and balanced and that it meets the needs of our growing economy.

“Thank you for bringing this important issue to my attention. Please be assured that it will be given our full consideration.”

Norris was responding to a hysterical letter from Fougere, dated October 10, 2008, railing against a September 23, 2008, decision by the LRB on the issue of abandonment involving the International Brotherhood of Electrical Workers, Local 529, and Saunders Electric Ltd. (LRB 019-05). The board ruled in favour of the union and required the company to pay union dues dating back to 1984.

Fougere said the decision of the board 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,” he said. “The SCA and our member companies are demanding a quick and final remedy to this unprecedented threat to our industry and our members.”

The SCA called on the government to “quickly establish abandonment rules” and “end the monopoly of the Building Trades in the construction industry.”

“The decision of the LRB is one of the most serious threats to our industry and, by extension, to the provincial economy,” Fougere said. “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.”

Fougere requested “an immediate meeting” with Norris and his officials “as a first step in resolving the issues facing” the construction industry.

Fougere didn’t have to wait long to get his meeting.

According to a November 2008 newsletter posted on the organizations website, the association had “received confirmation” that Premier Brad Wall and the provincial cabinet would meet with the lobby group’s board of directors on November 26, 2008.

“These meetings offer the construction industry a huge opportunity to have influence on government programs, polices, and spending priorities,” the newsletter said.

In the December 2008 newsletter the association declared the private meeting “a great success.” Among the issues “raised directly with the Cabinet” was: “The government must provide more balanced and fair labour legislation, including allowing for abandonment of old inactive union agreements after 3 years.”

A news release issued by the SCA includes a photo of Norris at the meeting speaking with Fougere.

On March 10, 2009, Norris introduced Bill 80, an Act to amend The Construction Industry Labour Relations Act, 1992, giving the SCA what it wanted and then some.

A government news release said the proposed changes will allow a trade union to organize a company on a multi-trade, or “all employee” basis, as well as on a craft, or single trade basis. It will enable any trade union to certify an employer and allow employers to choose the REO that will represent them. It will also permit an employer operating outside an REO to negotiate a collective agreement for the duration of a specific project.

The labour board will have the authority to investigate complaints that a union has abandoned its bargaining rights; and the right to revoke a union’s certification on the basis of an abandonment claim.

The amendments were introduced without any prior public debate or stakeholder consultation.

The Wall government later conducted five days of public hearings on Bill 80 – four in June 2009 and one in November 2009.

SCA president Michael Fougere appeared before the legislature’s human services committee on June 17, 2009, in support of the bill, but did not mention his organization’s closed-door meeting with cabinet. Other groups appearing before the committee that lobbied for changes include the Saskatchewan Chamber of Commerce, PCL Construction Management Inc., and Christian Labour Association of Canada (CLAC), an employer friendly, pseudo union trying to gain a foothold in the province.

The hearings would turn out to be a total sham.

In an interview with StarPhoenix reporter James Wood on October 5, 2009, Norris said he was “not opposed to amendments” to Bill 80 but, “the spirit of the legislation -- that is to ensure we have a more competitive Construction Industry Labour Relations Act and a more competitive construction industry within Saskatchewan, that we’re offering greater choice -- . . . those seem to me the fundamentals.” [Gov’t rejects construction unions’ proposal (StarPhoenix, October 6, 2009)]

In other words, regardless of the concerns raised, the legislation would likely remain unchanged.

On April 22, 2010, the StarPhoenix published an insightful op-ed by John D. Whyte, a professor of law at the University of Saskatchewan and the former deputy minister of justice and attorney general from 1997-2002, that, for once, presented the public with a view that was free from the Wall government’s and business and industry association’s propaganda machine.

There are good reasons for bargaining between comprehensive employer groups and unions that represent specific crafts or trades instead of having a single union represent all the employees at a specific firm or worksite, Whyte said.

“First, system-wide bargaining means that the constant changes in workforce size and workers’ place of work don’t require constant reorganization of unions or repeated certification application. Second, a craft-based union system means that unions can -- and do -- take responsibility for training and developing a skilled workforce.

“Third, craft unions have strong national networks that facilitate the migration of skilled workers to places such as Saskatchewan, where they are needed. Finally, under the system-wide model, labour relations in Saskatchewan’s construction sector have been stable and disruption free.”

Whyte didn’t buy Norris’s justification that the new law is in keeping with developments in constitutional law.

“In fact,” Whyte said. “The Supreme Court of Canada has recently articulated constitutional principles that should apply to labour relations. Far from justifying the plan in Bill 80 to undermine the established structure for the construction industry, the principles enunciated by the high court support the existing arrangement.”

There are two aspects to constitutionally protected collective bargaining, Whyte explained.

“The first prevents interference with the process of collective bargaining that affects “the capacity of the union members to come together to pursue goals in concert.” The second relates to the degree of impact on the “collective right to good faith negotiation and consultation.”

Whyte says Bill 80 clearly harms the ability of construction workers to pursue their interests in concert; it unravels current agreements and arrangements, and subjects to the vacillations of construction employment the process of collective bargaining and the benefits gained from it.

“In addition, the retroactive features of Bill 80 undermine good faith bargaining,” he noted.

“The Supreme Court also stated that the constitutional right to collective bargaining will be shaped by circumstances, so that different regulatory arrangements will be needed to meet the obligation.

“Consequently, it cannot be claimed without reservation that Bill 80’s changes are unconstitutional. What can be said, though, is that the harmful impact on workers’ interests makes the bill suspect, and that its changes cannot be justified on the grounds that they are constitutionally mandated.”

Whyte goes on to say that in two instances the proposed reforms give employers the ability to overturn labour arrangements that have been agreed upon and are in current operation. Thus, Bill 80 operates retroactively to remove established rights.

“There is an absolute constitutional prohibition against retroactive criminal legislation, while retroactive changes to civil legal relations are also considered a legislative offence.”

Whyte continued to hammer away at the legislation saying the provisions of Bill 80 allow individual employers to recognize any union (including employer-sympathetic unions). “At that point, existing employer obligations under the present collective bargaining arrangement could be removed,” he said.

“Second, employers can ask the Labour Relations Board to declare that currently certified unions have abandoned collective bargaining if, at any time in the past, they did not engage in worker representation for three years. Since this rule applies even to an employer who has had no relevant craft employees for three years (which has been common in Saskatchewan's construction industry) this can become a significant weapon for dismantling the existing and fair structure for construction industry labour relations.”

Whyte concludes that if the government’s priorities are stable relations between construction employers and their workers, concern for the rights and interests of employees, and to sustain constitutional integrity, it has badly missed the mark.

“It has chosen instead to be influenced by the mistaken idea that the freer the labour market, the better it is for workers and the economy,” he said. [Bill 80 reforms aren’t panacea gov’t envisions (StarPhoenix, April 22, 2010)]

It’s interesting to note that no one from the provincial government, construction industry or business community rebutted Whyte’s analysis.

Ignoring criticism, no matter how legitimate, the Wall government pushed ahead with the badly flawed and unnecessary labour law.

On May 5, 2010, Norris revealed to reporters that the government was prepared to pass Bill 80 as is and would not wait for the report from the human services committee on the public hearings held last year.

According to StarPhoenix reporter James Wood, Norris said he has a good sense of what took place during the public hearings.

“I think certainly based on the public consultations that have gone on, very extensive and very public, if and as the committee proceeds, and we will see how it proceeds, we’re comfortable in moving forward,” he said.

Wood reported that while much of the testimony at the hearings was in opposition to the legislation, the government will pass Bill 80, essentially unchanged from when it was first introduced, by the end of the spring sitting of the legislature.

Norris acknowledged there are stakeholders opposed to the bill, but the government believes it “will serve the public interest of this province.”

In an interview with Wood at the legislature, Terry Parker, business manager of the Saskatchewan Provincial Building and Construction Trades Council, said the committee hearings now look to be a waste of taxpayers’ dollars and the participants’ time.

“From what the minister was saying, it sounds like they were going to go ahead regardless and the whole committee process was a sham,” Parker said.

Parker, who met with Norris the previous evening, showed Wood a September 2009 letter from Norris to one of the council’s affiliated unions that said: “I can assure you that the contents of the report of the standing committee . . . will be studied by Ministry officials to identify the implications of the recommendations.” [Gov’t to move ahead with Bill 80 (StarPhoenix, May 6, 2010)]

The Wall government passed Bill 80 on May 19, 2010, the second last day of the spring legislative session.

The Leader-Post’s Angela Hall reported that representatives of business groups who came to the legislature to see the bill’s passage applauded the changes, with SCA president Michael Fougere thanking the government for its “political courage.”

“This is ground-breaking legislation. What we see is a monopoly that will be disbanded . . . this is for more competition within the building trades industry and that’s a good thing for everyone,” Fougere told reporters. [Gov’t passes Bill 80, land sale amendment (StarPhoenix, May 20, 2010)]

The cozy relationship between the Wall government and SCA appears to be for the long term. In its May 2010 newsletter the association announced that its board would meet with Premier Wall and the provincial cabinet on May 26, 2010. The private gabfest is now being touted as a yearly event.

“This annual meeting provides a great opportunity for your association to lobby the government and further the interests of our membership,” the newsletter says.

In contrast, the Saskatchewan Federation of Labour (SFL), which represents over 95,000 members, from 37 national and international unions, has been shunned by the premier. When asked if the labour group has ever met with Wall and cabinet, SFL president Larry Hubich said no.

“The SFL has never had a private meeting with Premier Wall and his cabinet to discuss labour issues. Nor have we ever had a meeting with Wall and his cabinet to discuss any matter,” Hubich said in an email on June 1, 2010.

Hubich wrote to Wall in 2008, on behalf of the SFL executive council, and requested a meeting with him and the cabinet to discuss issues important to labour, but was instead assigned to meet with a caucus committee headed up by Saskatchewan Party MLA Glen Hart.

“That is the only time that the SFL executive council (as an organization) has had a meeting with any of the Sask. Party members, except once Rob Norris came to meet with the SFL executive at our regular meeting,” Hubich said.

Wall can make time to meet with industry associations and business lobby groups, yet refuses to extend the same courtesy to labour. And people wonder why there is so much animosity between the two.

In the Journal of Commerce, Western Canada’s construction newspaper, on May 31, 2010, Parker said the negative impacts of Bill 80 are already being seen in the province.

“All the contracts for our affiliates expired on April 30,” he said.

“The contractors’ association is already looking for concessions to the contract to compete with CLAC (Christian Labour Association of Canada) and the contractors, which include PCL and Ledcor.” [Saskatchewan contractors applaud new labour legislation (Journal of Commerce, May 31, 2010)]

PCL is a major contributor to the Saskatchewan Party. Financial statements filed with Elections Saskatchewan show that for the seven year period from 2003 to 2009 the company donated $54,965.75 to the political party. Additionally, PCL’s Saskatchewan District Manager, Kris Hildebrand, currently serves on the SCA board representing the Regina region.

Alberta-based construction giant Ledcor CMI Ltd. appeared before the human services committee on June 18, 2009. Tom Brown, senior vice president of operations, told the committee that the company has used CLAC “exclusively” for the past 20 years.

As a construction company there was nothing to prevent Ledcor from coming to Saskatchewan, but since CLAC was not allowed to organize in the province the company chose to stay away.

While Ledcor is a “union contractor” that “could sign contracts with the building trades,” Brown said it was “not in our corporate best interests” to do so.

Brown was basically saying that if they came to Saskatchewan they’d bring CLAC with them.

“Our intention would be, I suspect . . . And I’m not a labour relations practitioner. I’m an operations guy essentially. But we would likely enter voluntary recognitions with CLAC, and establish unique-to-Saskatchewan collective agreements.”

Well, so much for the Wall government’s bogus spin that Bill 80 was meant to benefit workers more so than employers.

Appearing before the human services committee on June 24, 2009, Labour Minister Rob Norris confirmed that Ledcor, along with CLAC and SCA, were among the organizations that lobbied the government for changes in the construction industry legislation.

Looking back, it’s clear now that the fix was in from the beginning. It appears Bill 80 was virtually written by the SCA, the provincial chamber of commerce and contributors to the Saskatchewan Party. The Wall government never intended to consult with all stakeholders and front-line workers in a meaningful way.

SCA news release on Nov. 26, 2008 meeting with cabinet