Jobs that aren’t ‘regular maintenance’ may be contracted
A British Columbia employer is free to contract out welding work that isn’t part of regular repairs of its equipment after a union grievance was dismissed.
BCMEA Global Container Terminals (GCT) runs operates shipping container terminals and is based in Vancouver. At the terminals, GCT has mobile equipment called spreaders that are large devices used to lift shipping containers and other types of cargo.
Often, when structural cracks — cracks in equipment that is stressed or loadbearing — appeared on the spreaders, GCT used its own welders to fix them, but sometimes it contracted the work to outside contractors. This mixed use of employees and contractors for welding was normal practice for several years.
However, in January 2019, a structural weld on a crane failed. The weld had been done by one of GCT’s own welders, so the company reviewed its practice of handling this type of repair. It determined that welds for structural cracks would only be contracted out to contractors who were certified by the Canadian Welding Bureau (CWB) to ensure the structural welds were performed in accordance with CWB standards.
Many equipment suppliers required structural welds to be done pursuant to CWB standards and GCT was concerned about workplace safety under the Canada Labour Code.
The union representing GCT’s new policy, argued that the welders in its membership were “A” ticketed welders — the highest standard of certification in B.C. — and this made them capable of performing structural welds. The union pointed to the fact that its welders had performed such repairs frequently and capably for several years.
The collective agreement between GCT and the union required that members of the bargaining unit be the ones to perform “regular maintenance work” on GCT’s equipment, as long as qualified employees were available onsite or through the dispatch system. If no employees were available, then GCT was permitted to contract out the work.
The collective agreement also stated that work not included under “regular maintenance work” — such as “work required on new construction, new installation, significant alteration of existing structures or installation, or work under warranty” — could be performed by outside contractors as GCT saw fit. GCT was required to notify the union “in a timely manner” of any new work not falling under regular maintenance work.
The arbitrator noted that GCT’s concerns over safety and CWB certification were legitimate, but these were priorities regardless of who did the work. However, just because employees had done the work in the past didn’t mean it was required under the collective agreement, said the arbitrator, in pointing out that employees hadn’t done the work exclusively in the past.
The arbitrator found that “regular maintenance work” wasn’t defined in the collective agreement, but there was no doubt checking for cracks and normal repair was part of it. The evidence indicated that structural cracks don’t normally occur in spreaders and cranes when they are properly manufactured, and they only showed up when the equipment reached the end of its normal useful life or it suffered damage in an accident. This meant structural cracks weren’t normal and repairing them wasn’t part of regular maintenance work, said the arbitrator.
The arbitrator determined that “these types of cracks in structural components only occur in extraordinary circumstances such as a manufacturing defect, accident or improper use of the equipment” and fixing them wasn’t “usual, normal or ordinary.” Though union members were sometimes assigned to do this work, it wasn’t part of regular maintenance or repairs and GCT wasn’t prevented by the collective agreement from contracting it out.
The grievance was dismissed, but the arbitrator cautioned that GCT should assess each situation on a case-by-case basis to see if there were employees available who could do the work — and keep the union in the loop.
Reference: BCMEA Global Container Terminals and ILWU, Local 502. Gabriel Somjen — arbitrator. Michael Smolander for the employer. David Burton for the employee. 2019 CarswellNat 4785.
