Recently, FMC's labour law team appeared before the commission de la construction du québec (hereinafter the "C.C.Q.") and demonstrated the expertise it has acquired before civil, penal and administrative tribunals in the interpretation and enforcement of laws, regulations and sectorial collective agreements. FMC won two important cases dealing with the scope of An Act respecting labour relations, vocational training and workforce management in the construction industry (hereinafter the "R-20 Act")1 and An Act respecting collective agreement decrees2. The background of these cases is related in the following paragraphs.
On March 27, 2003, amendments to the Regulation respecting the application of the Act respecting labour relations, vocational training and workforce management in the construction industry3 (hereinafter the "Application Rules") regarding production machinery came into force. It took almost five years for the Commissaire de l’industrie de la construction (hereinafter the "Construction Industry Commissioner") to render his first two decisions on the interpretation of the new provisions adopted in 2003.
On January 31, 2008, Deputy-Commissioner Jean Larivière rendered a decision in Falconbridge Ltd. (Noranda Inc./Fonderie Horne) et al. v. Commission de la construction du Québec. Meanwhile, on February 1, 2008, Chief Commissioner Josette Béliveau rendered a decision in Domtar Inc. et al. v. Commission de la construction du Québec. The hearing of these cases lasted over 75 days, with numerous witnesses appearing, including owners, contractors, employees and experts. These decisions also deal with the exercise of the C.C.Q.’s suspending powers.
In April and May 2005, Domtar Inc. (hereinafter "Domtar") and Falconbridge Ltd. (hereinafter "Falconbridge") went ahead with scheduled production halts at their respective facilities in Rouyn-Noranda and Windsor in order to perform maintenance work on their production machinery. Since the work was not subject to the Application Rules, Domtar and Falconbridge each called on their respective specialized contractors and manpower, consisting in part of several hundred non-construction workers.
Asserting that the work was subject to the Application Rules, the C.C.Q. demanded that construction workers be hired and immediately suspended the work that was underway.
In response, Domtar and Falconbridge immediately applied to the Construction Industry Commissioner to stay the suspension orders, rule on their legality and declare the work exempt from the Application Rules.
The decisions rendered by the Construction Industry Commissioner
The decisions by the Commissioners overturned the C.C.Q.’s suspension orders and ruled that the installation and repair work done during the production halts in April and May 2005 did not constitute construction work as defined in the Application Rules.
As for the suspension orders, the Commissioners found that, in this case, the C.C.Q. had acted prematurely and without knowing whether the work was subject to the Application Rules. The Commissioners found the C.C.Q.’s position on that point arbitrary and unsubstantiated. The Commissioners also found that throughout the process leading up to the issuance of the suspension order, the C.C.Q. had been intransigent and had never validly considered the serious arguments submitted to it on whether the work was subject to the Application Rules, to the detriment of the principles of natural justice and procedural fairness required under the R-20 Act. The Commissioners also held that the C.C.Q. had been lax in leaving the cases on the back burner, only to wake up at the last minute and bring out the heavy artillery. In conclusion, the Commissioners found that the C.C.Q. had made a grave procedural error and had abused its suspending powers.
Regarding the issue of whether or not the work was subject to the Application Rules, the Commissioners defined "installation", "repair" and "maintenance". Although the Commissioners had found that the replacement of parts during the maintenance programs was more closely related to repair work, they found that, in this case, the work did not require the professional expertise which is found primarily in the construction industry pursuant to the Application Rules. The Commissioners decided that the trades of jobsite mechanic, welder, pipefitter, electrician and carpenter did not represent professional expertise found primarily in the construction industry. Accordingly, the Commissioners concluded that the overall work done during the production halts in April and May 2005 did not constitute construction work as defined in the Application Rules.