[1999] OLRB REP. MARCH/APRIL 196
3361-97-G International Union of Operating Engineers, Local 793, Applicant v. H. Kerr Construction Ltd., Responding Party
BEFORE: Mary Ellen Cummings, Alternate Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; March 1, 1999
This is a referral of a grievance in the construction industry, pursuant to section 133 of the Labour Relations Act, 1995 (the "Act").
The responding party has raised a number of defences to the grievance, and the Board has sought written submissions in an effort to narrow or resolve the issues that require an oral hearing. This decision will resolve one issue, and provide further directions.
Although the parties are not agreed on all of the relevant facts, they have agreed to the following:
The Applicant ("the union") represents employees of the Responding Party ("the company") only in the ICI sector of the construction industry even though the Provincial Collective Agreement covers employees engaged in schedules and classifications in addition to "Building and Construction Work".
The union was issued a certificate by the Ontario Labour Relations Board (the "Board") in December, 1978.
From the date of certification to 1991, there was minimal contact between the parties. In 1991, the union filed a grievance with respect to work being done at a landfill site. The parties resolved the grievance on the basis that the company acknowledged that it was bound to the ICI agreement.
On October 7, 1997 the parties entered into an agreement to settle a grievance filed on January 30, 1997 in respect of work performed at a soccer facility. At that time the parties agreed that the company was bound to the ICI agreement in the ICI sector of the construction industry only. The union waived claims relating to work performed prior to the date of the agreement. A copy of the Minutes of Settlement is attached to the Referral of Grievance.
The company is based in Wingharn, Ontario and is involved in various kinds of work throughout the Province of Ontario but primarily in Western Ontario, involving earth moving associated with subdivisions, road building, airport runways, sewage lagoons, golf courses, landfill sites, and sewers and watermains.
This is the first grievance the union has ever filed in connection with work on lands ultimately intended to be used as a golf course. The company has performed 15 - 20 such projects since 1986 but the Union maintains that they were not aware of such projects.
In September of 1997 the company was engaged to perform topsoil stripping and stockpiling and some pond excavation on vacant property in Innisfil Township. The earth taken from the pond excavation was moved to build berms and mounds for the golf course.
A small portion of the property is zoned agricultural and cannot be used for golf course use. The remainder is zoned open space conservation. The lands are designated agricultural under the
Official Plan for the Town of Innisfil. The open space conservation zoning allows the property be used as a golf course.
The property is comprised of approximately 84 acres, is vacant, and not being otherwise used at the present time. There is one unoccupied house on the property. A building permit has been issued for renovations to that structure.
The company was engaged to do preparatory work for an eventual golf course use which will include such things as tees, greens, fairways and ponds.
The company was engaged by New-Land Greenscapes Inc. to perform the work. Employees and equipment of the company were on site from September 22, 1997 to October 24, 1997 at which time weather conditions interfered with continuing work. The work was performed using bulldozers and scrapers. Other companies were working on site doing pond excavation.
A grievance was filed on October 29, 1997 and following that date the company has not performed any further work on the property.
The union claims that the work performed was construction work and that it comes under the ICI sector. The company maintains that this project was neither construction work nor in the ICI sector thereof.
The parties are not aware of any reported decisions of the Board as to whether work performed on a site intended for golf course use is work performed within the construction industry of the ICI sector thereof.
Initially, the responding party took the position that the work was exempted from the coverage of the Act, by virtue of section 3. The responding party no longer so asserts. The Board sought and received submissions on the responding party's position that the work does not fall within the "construction industry", within the meaning of section 1(1) of the Act:
"construction industry" means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site.
The responding party submits that the activities in the definition are not broad enough to encompass top soil stripping and stockpiling with pond excavation, which are preparatory work for an eventual golf course. Counsel also asks us to conclude that "works at the site" relates to the enumerated activities, with "site" referring to buildings, structures, roads, etc. Counsel concludes that the work of configuring land on the golf course does not fit into the statutory definition, which describes certain kinds of activity happening to particular kinds of man-made structures.
The responding party distinguished these facts from those in The Jackson-Lewis Company Limited [1981] OLRB Rep. Dec. 1794. In that case, counsel argued, the landscaping work was found to be construction in part because it was ancillary to the building of a commercial office tower which clearly fell within the construction industry. In contrast counsel submits, the work at issue is not ancillary or collateral to anything:
The configuration of the land on the golf course is the end use of the work.
Counsel also argued that since the work at issue does not fit neatly into any of the sectors described in section 126, this was further confirmation that the work does not fall within the construction industry.
Counsel for the applicant indicated that two cases in particular assist in setting out a framework for analysis of what work falls into the construction industry; Jackson-Lewis (above) and Mannix Co. Ltd. [1965] OLRB Rep. Jan. 526. In both cases, the Board considered the nature of the work, the equipment in use and the nature of the employer's business. In this case, counsel submitted, the equipment used (bulldozers and scrapers) is commonly found on a construction sites and is generally associated with construction work. Similarly, the employer is a construction company, typically performing work related to roadbuilding, sewer and watermain, and residential construction.
Turning to the nature of the work, counsel for the applicant submitted that in Mann ix (above) preparatory excavation and stripping were found to be construction. Counsel argued that the nature of the work, the nature of the equipment used, and the nature of the responding party's business all point to a conclusion that the work is construction.
The applicant also took issue with the responding party's characterization of "or other works at the site", in the statutory definition of "construction industry". Counsel submitted that "or other works" is an open-ended category of other "things" that can be demolished, altered, etc. And "at the site", counsel suggested, refers back to all the "things", and is really intended to distinguish between activities taking place at the "construction site" as opposed to an off-site shop.
The Board is more attracted to the applicant's arguments. It is also important to note, as the applicant did, that the work in question has a context: the creation of a commercial golf course. And when one asks how do you build a golf course, the answer includes excavating for ponds, stockpiling and building berms and mounds. It is hard to escape the conclusion that taking a virgin piece of property and forming into a commercial golf course is new construction.
The Board is also prepared to follow the framework for analysis in Mannix, that was adopted in Jackson-Lewis. In this case, the nature of the work, the nature of the equipment used, and the nature of the employer's business all point toward a conclusion that the work in issue is work in the construction industry.
Turning, finally, to a consideration of the statutory definition of "construction industry", we disagree that "works at the site" is as limiting as the responding party suggests. "At the site" refers to the location of the buildings, structures etc., or in common (if not entirely useful) language, "the construction site". The use of the word "works" has to mean more and different enterprises from those enumerated because the subsection uses the term "other works". Taken together, "other works at the site" means that the "construction industry" includes the constructing, building, altering etc. of other enterprises where the activity occurs at the construction site, in contrast to work at an off-site shop. In our view, a commercial golf course can be included in "other works", and there can be no dispute that its creation requires altering of virgin land, and that activity occurs at a construction site.
In summary then, having regard to the definition of construction industry, and having regard to the framework of analysis used by the Board in the past, along with a common sense appreciation of what is involved in creating a commercial golf course, the Board is satisfied that the work in issue falls within the "construction industry" as defined in subsection 1(1).
The Board's decision of December 14, 1998 suggests that the next step would be a sector determination. However, the Board is reluctant to expend its resources (and those of the parties) on a sector determination unless it is satisfied that there is a triable issue. Put another way, before the Board will convene an oral hearing, the responding party must satisfy the Board that there is a genuine dispute, having regard to the Board's jurisprudence around sector determinations.
For example, in The Heavy Construction Association of Toronto [1973] OLRB Rep. May 245, an often relied upon case (and one relied on by the responding party), the Board said that the enduse of the construction work in issue will be determinative of the sector into which the work falls, except in the heavy engineering sector. The description of the work agreed to by the parties, does not suggest that it would fall within the heavy engineering sector. Consequently, based on our understanding of the Board's jurisprudence to date, the focus of a sector determination would be on the end-use of the construction.
Section 126 of the Act sets out the existing sectors:
In this section and in sections 127 to 168,
"sector" means a division of the construction industry as determined by work characteristics and includes the industrial, commercial and institutional sector, the residential sector, the sewers and watermains sector, the roads sector, the heavy engineering sector, the pipeline sector and the electrical power systems sector.
A focus on the end-use of the construction work in question suggests that it would fall in the industrial, commercial and institutional sector. However, the responding party is entitled to an opportunity to challenge the Board's jurisprudence, and approach. But, to be clear, this matter will not be scheduled for an oral hearing unless the responding party pleads a prima facie case that this work is not in the ICI sector. The responding party is required to serve and file its submissions by March 15, 1999. The applicant shall respond by March 29, 1999. Any reply is due on April 6, 1999.
The hearing dates tentatively scheduled for March 8 and 12, 1999 are hereby adjourned.