April 15, 2008

How employers can avoid liability in disputes over work assignments

Construction Law

Jeremy Schwartz

Construction industry employers often behave as if they are immune from liability in jurisdictional disputes.

That is probably because the Ontario Labour Relations Board has historically taken the position that damages for incorrect work assignments are generally inappropriate. However, the Board has consistently warned that employers don’t have to be right – but to avoid damages they must assign work reasonably and in good faith.

In 2007, the Ontario Labour Relations Board released its decision in Bondfield Construction Co. Ltd., in which, for the first time in recent memory, it awarded damages to a union in a jurisdictional dispute for all wages its members lost as a result of an incorrect work assignment.

This award should serve as a wakeup call to many construction employers who adopt a casual approach to work assignments and pre-job mark-up meetings, or ignore their role in the jurisdictional dispute settlement process. Such employers could face substantial liability.

In the Bondfield decision, the company awarded work to a sub-contractor that it was accustomed to working with in another Board Area, even though the assignment was “contrary to a previous decision of the Board (of which it was aware) and contrary to generally accepted area practice.” The Board found the work assignment not only incorrect but also unreasonable, and ordered Bondfield to pay damages for any work assigned to painters that should have been assigned to bricklayers.

By following these few simple rules, employers can dramatically reduce the likelihood the Board would order them to pay damages for incorrect work assignments:

•Read and follow the collective agreement. If the agreement requires a pre-job mark-up meeting, or a particular consultation process, failing to comply could expose employers to liability under the agreement, even if the work assignment is correct.

Failing to comply would also make it more difficult to defend a work assignment in a jurisdictional dispute.

•Train and Explain. Employers should keep themselves informed of relevant work assignment decisions issued by the Board and ensure personnel making work assignments understand and follow them.

•Have a “fair” work assignment process. All interested parties should have the same information regarding the work to be performed and an equal opportunity to provide information to support their claim. If employers ask for submissions, decisions should be reserved until they are received and reviewed.

•Keep records and meeting minutes. Take notes of what was discussed at pre-job mark-up meetings: who was there and who they represented; which unions made work claims on what grounds; and who remained silent when specific work was discussed.

•Be prepared to explain decisions. Generally speaking, when determining whether an assignment was correct the Board looks at six criteria:

Collective bargaining relationships; trade agreements between competing unions; employer practice; area practice; safety skills and training and economy and efficiency.

Employers should base their work assignment decisions on the following criteria and record them accordingly.

Actively engage in the Board’s dispute-resolution processes. The Board will schedule at least one pre-consultation conference in any jurisdictional dispute. Employers often ignore these meetings. That is a mistake.

It is at these meetings that the work in dispute is described.

By failing to attend, employers take the chance that the work will be described incorrectly or unfavourably, and that the Board will be unwilling to redefine it later.

In addition, the Ontario Labour Relations Act and the Board’s Rules of Procedure set out an employer’s responsibilities in jurisdictional disputes, which include participation in any pre-consultation conferences. Employers would be well advised to fully comply.

Jeremy Schwartz is an associate with the Toronto law firm Stringer Brisbin Humphrey, Management Lawyers, practising in the areas of construction labour relations and employment law.

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