Does construction work on telecommunications networks fall within provincial jurisdiction?
Labour Board deals with the thorny issue of jurisdiction
Is a construction company that performs construction work for a federally regulated undertaking fall within provincial or federal jurisdiction for labour relations purposes? As the Ontario Labour Relations Board noted in this case, “This is an issue that has befuddled the Board, other regulators and the courts for some time” and the decisions dealing with it are “not always consistent, and frequently contradictory.” In this case, the Board determined that provincial jurisdiction ruled.
LiUNA OPDC filed an application for certification under the Labour Relations Act, 1995 to represent the construction employees of Ramkey Communications Inc. Ramkey opposed certification on the basis that it was “engaged, either directly or derivatively, in a federal work or undertaking” – namely telecommunications – and was therefore federally regulated.
The work of the employees was unquestionably construction work, and Ramkey did not own or have an interest in any telecommunications networks. However, Ramkey maintained that its business fell within federal jurisdiction because it was either a telecommunications contractor in the cable installation and service business, or a vital, essential or integral part of telecommunications.
The Board’s decision
The Board rejected Ramkey’s arguments. It noted that labour relations are presumptively a matter of provincial jurisdiction. At best, Ramkey only “derivatively” came into federal jurisdiction.
… [I]nfrastructure (essentially what Ramkey builds or repairs for Rogers) is infrastructure and building it – whether a pipeline, railroad or telecommunications network, or a runway at an airport – is still construction.
The Board therefore certified LiUNA OPDC as bargaining agent. An application for reconsideration was also denied.
Ramkey sought judicial review of the Board’s decision, and was successful. However, LiUNA OPDC obtained leave to appeal the decision to the Ontario Court of Appeal. That appeal was successful.