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ADAT
cp.190 stn "A"
Ottawa K1N 8V2
COURRIEL; meritqc@adat.ca |
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Gatineau court challenge the latest
step in fight for labour mobility
The Ottawa Construction News
Pamela Eadie, Editor
2003-12
Almost two years
to the date of a Supreme Court ruling that upheld the Québec laws he hoped
to have declared unconstitutional, Jocelyn Dumais sat in a courtroom,
harboring the same ambitions.
A Gatineau judge will rule on a
constitutional challenge to part of Québec's construction law that Dumais
argues violates Section 6 of the Charter of Rights and Freedoms, which
guarantees the right to find work in any province. A decision is expected
in late December.
Lawyers for Québec's attorney general and the
province's largest construction union say the law is not discriminatory
because it applies to all workers and does not single any particular
individual or group out.
Under the law, construction workers at
Québec job sites must have a union card, complete a safety course, and
have a Grade 11 diploma (Québec) and letters from employers guaranteeing
150 hours of work done in a period of three months. This has made it
difficult for Ontario workers to work in Québec, and essentially requires
that any Québec worker wishing to work in the province join a union.
This spawned Ontario's retaliatory Bill 17 in 1999, which requires
Québec workers to provide proof of competency, and mandatory registration
of all Québec workers with the Ontario Job Protection Office. It also
prohibits Québec construction firms from bidding on provincially funded or
Crown corporation construction contracts.
In 2001, Dumais' group
took its challenge of the Québec laws to the Supreme Court of Canada,
where it was narrowly defeated on a 5-4 vote, which was rendered on Oct.
19, 2001.
More than 145,000 Ontario and Québec construction
workers were charged under the law between 1978 and 1998, paying $29
million in fines to the Québec government.
The court hearing on
charges against several workers ended Oct. 24 after three days of
testimony, in which Dumais was a key witness. Dumais owns an Ontario
company, but lives in Québec.
"We explained all of this to the
court, that there is a barrier even if you don't see it. It's not
airtight, but it's there," says Dumais, president of the Association for
the Right to Work, and owner of a concrete forming company. "We felt bad
because for years many people have been complaining about this situation
on both sides of the river."
Dumais says he thinks "right to work"
lawyer Julius Grey did an effective job arguing to the judge that the laws
violate the right to work in any province. Previously, Dumais challenged
the law on the basis that they force workers to join Québec unions, which
he says is a violation of the Charter's guarantee of freedom of
association.
However, if the law is upheld, it will be the second
time it has been declared constitutional, and Dumais will have to decide
if he will continue the fight, which he has led for 11 years. In April
1999, Québec construction workers temporarily blocked the bridges between
Ottawa and Hull.
"We will have to sit back with our people and see
what they decide," he says, adding that at this point it is too soon to
know what the court's decision will be.
If the decision renders
the laws unconstitutional, Dumais says it will have serious but positive
ramifications for the construction industry, particularly in Québec.
"The Québec government will have to change its labour law to make
it easier to access the industry," he says. "One thing is sure, it would
open up the border and they could not close it again for any reason. We
hope that this time around we'll have open borders throughout Canada."
André Martin, a spokesperson for the Commission de la construction
du Québec (CCQ) denies that the law violates worker's constitutional
rights.
"That's the regulation, that's the law, that's the
situation. In Québec, you have to become qualified," he says, adding that
some employers require University degrees as a prerequisite for employment
in some fields, and that this isn't any different. "Maybe 20 years ago or
more the construction sector everybody could do the job, it didn't matter
about the training or the educational level. But things are changing. Now,
it's getting more technological, and we need to have manpower that is more
productive."
He says that Québec workers often work on the black
market when they cross the river into Ontario, and that those hours cannot
be recognized in Québec towards a competency card. He says that so long as
the work is completed in the "white market" the experience will be
recognized.
Dumais says it's not that simple, and that invisible
barriers prevent labour mobility. He would like to see the union
requirement struck down.
He has the support of John DeVries,
president and general manager of the Ottawa Construction Association.
"He's saying that Québec has this restrictive CCQ system where the
door is open some days, the door is closed others, that's how he's
attacking the system," says DeVries. "If the court rules that in favour of
less restriction in the way CCQ controls the system, I think that would be
a positive. I think there is too much control, and I think they should
unregulated how they control entry into the labour pool for each
occupation."
DeVries says Dumais' intentions have their roots in
democracy.
"In Ontario it's not dictated that you have to be
unionized. He's a believer in democracy; if the guys want to be union, let
them choose. But in Québec they have no choice."
Martin argues
though that if the Québec workers didn’t want the union system, they would
oust it on their own.
"I think most of the Québecois workers in
Québec prefer the situation where they are a union member because there
are better conditions," he says. "The laws sometimes reflect the social
revolution, and there's no large movement in Québec to change that."
However, he does allow that there could be some room for change to
the system.
"We agree that we could maybe modernize certain
aspects of the regulations, specifically what we call the manpower pool by
each trade in each region," Martin says. "He (Dumais) has the right to
think like this, but in the CCQ we are working to modernize certain things
like the definition of the trades, the way of getting into the industry."
Regardless of the outcome of the court case, there is some renewed
hope that the situation can be worked out amicably between the new Liberal
Ontario and Québec governments. Québec Premier Jean Charest and Ontario
Premier Dalton McGuinty have said labour ministers from both provinces
will negotiate an end to the issue soon.
Bernard Grandmaître, an
Ontario MPP for 15 years under the David Petersen government, says it
isn't going to be easy to reach a resolution, but that it is necessary.
Grandmaître retired in 1999 after holding cabinet positions
including Minster of Municipal Affairs, Revenue, and Francophone Affairs.
He was at the centre of the construction labour issue during the
early-1990s, when as MPP of Ottawa-East (now Ottawa-Vanier) he introduced
a private members' bill in an attempt to resolve the ongoing dispute
between the provinces, after hearing horror stories from constituents who
were construction workers working in Hull and being fined. The bill passed
in the House, but eventually died.
Grandmaître says he felt
sympathy for construction workers-many of whom were older than 50 years
old and with very little education-who had to jump through hoops to have
access to small contracts.
"I thought it was very unfair for these
people who have practiced the same trade for 30 or 35 years, and now they
were being subject to all kinds of discrimination."
But change
will not come easily, he says.
"We're faced with the same old
problems of 1985, 1990, 1993, and we're in 2003 and we're still talking
about the same thing," he says. "I think with a new government in Ontario
and Charest's willingness to open the docket, I think there's a great
chance of moving on this issue."
"It's not going to be easy for
Mr. Charest because in my past experience it is not the government that
was in charge, as far as construction workers in Québec were concerned,
it's the unions. Let's be honest, you've got to call a spade a spade."
DeVries is also hopeful that some sort of inter-provincial
agreement can be reached.
"There's a history there, the Liberals
don't mind freeing up stuff, and if they do, I think that's going to
address some of these issue of control that the contractors on the Ottawa
side chafe under. So I think that's a positive," he says.
Martin
says the CCQ would also welcome resolution to the situation.
"I
think both Premiers want to find a solution that will be agreeable to both
provinces. I think that the will is there, they want to, and I think
that's good news," he says.
But whether a solution hammered out
between premiers would be satisfactory to Jocelyn Dumais is another
question.
"Even if he's not fully satisfied, he's making a little
progress, a little progress, but that's not what he's looking for," says
Grandmaître, who Dumais credits as his mentor. "He started with very few
labourers and tradesmen but now he is surrounded by a good number of
people and he's helped a lot of people, so you've got to give him credit."
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