Specialized Contractor Can Do More Than One Thing

Written by Daniel Standing, LL.B., Editor, First Reference Inc.

A recent decision of the Ontario Labour Relations Board, 2022 CanLII 5411 (ON LRB), could make waves in the construction industry for its redefining the concept of a specialty scaffolding contractor. Departing from the oversimplified notion that a speciality scaffolding contractor does nothing but scaffolding, the Board adopted a contextualized approach by examining the contractor’s devotion of time and resources to scaffolding to determine the matter.

Background

The decision concerns two work assignment disputes filed by the Labourers’ International Union of North America under Ontario’s Labour Relations Act, 1995. The responding parties were a number of construction contractor companies and a carpenters’ union.

The work in dispute concerned, in general, scaffolding: erecting and dismantling it, as well as handling, moving, cleaning, organizing and inventorying it.

The Board’s decision

The Board began its ruling with a recognition of the importance of a previous case, the Stator Rewind decision. However, despite its applicability to the same parties on the same site, it did not bind the Board in a legal sense since it dealt with different work and different legal issues: first, the question as to whether one of the companies opposing the Labourers, Aluma, was a “specialty scaffolding contractor,” and second, the distinction between general and trade tending with respect to scaffolding.

The Board explained how when jurisdictional disputes arise in the construction industry, it examines in context the various criteria that were developed in past cases, including (i) collective bargaining relationships, (ii) trade agreements between the competing unions, (iii) employer and area practice, (iv) safety, skills and training and (v) economy and efficiency.

After determining that the first two factors were neutral, the Board moved on to the third factor and delved into what it called “the specialty scaffolding contractor question.” On this, the parties could not have been more divided: The Labourers said the test was whether the scaffolding contractor does “nothing but scaffolding,” whereas Aluma and, ultimately, the Board, disagreed. The Board rejected the “oversimplified” view that specialization requires exclusivity; it said that one can be a specialty scaffolding contractor while also performing other work. What matters is the amount of effort and time (the Board used the words steady, continuous and long-term instead of arbitrarily fixing a timeframe) the contractor focuses on developing an expertise in scaffolding. For a quarter century, Aluma and its predecessor company performed this work on a vast number of projects and therefore it was found to meet the definition.

This finding did not end the analysis, however, as it was but one factor in the overall jurisdictional dispute. The Board also provided guidance on the different types of scaffolding work: general tending and trade tending. It explained that “trade tending is what happens at the scaffold; general tending is the movement of materials to and from the scaffold.” While the Labourers sought a restrictive definition of trade tending, the Board was hesitant to depart from the well-grounded definition of trade tending found in the case law. The Board decided that such work, which includes fabrication and inspection work, was and is properly assigned to members of the Carpenters’ union. It was the assignment of the general tending work that remained to be determined.

To rule on that point, the Board turned to the case law respecting scaffold tending cases, concluding that “there is a lengthy, consistent and pervasive history” of many general and multi-trade contractors using members of the Labourers to do general tending work. This general practice was strongly in favour of the Labourers.

The ruling was rounded out with findings that the final two factors were evenly split between the competing unions and were therefore neutral. Considering all of its findings, the Board confirmed the assignment of all of the disputed work to members of the Carpenters’ union except for the general tending work which was within the purview of the Labourers.

Key takeaway

Assuming the newly expanded meaning of a specialty scaffolding contractor is adopted in subsequent cases, this ruling will conceivably expand the scope of work that scaffolding contractors can perform in Ontario.

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