Striking Steelworkers claim use of contractors intended to squeeze union labour from plant
As the lockout at Rio Tinto’s aluminum smelter in Alma, Que., enters its fifth month, the United Steelworkers union (USW) is stepping up its pressure on the company to deal with what it says is the central bargaining issue: the company’s desire to use more subcontractors to replace unionized workers as they retire.
Guy Farrell, assistant to the USW-Quebec director, recently attended Rio Tinto’s annual general meeting in London, England, to make an appeal to the company’s CEO.
“We’re not saying no to contracting out,” he says. “Let’s just put it on the table and negotiate the parameters of it. We don’t want it to be imposed on us.”
Subcontracted workers were responsible for almost 11 per cent of the hours worked (140,000) at the Alma smelter in 2010, according to the USW. Two years later, the company wants to increase that number to 27 per cent, or 350,000 hours, the union says.
Although most collective agreements have some sort of subcontracting restrictions, that doesn’t necessarily prevent employers from bringing in employees supplied by a non-unionized subcontractor, according to Stephen Bernardo, an employment lawyer with the firm Mathews Dinsdale in Toronto.
The language itself may allow an employer to subcontract, for example, as long as the work does not result in a layoff or in cases where the company doesn’t have the manpower or equipment.
Articles in the collective agreement may also stipulate what work may be performed only by members of the bargaining unit.
However, the scope and meaning of this language can be open to interpretation, especially where the employer can make a business case for subcontracting or where the work could be seen as contracting “in,” rather than contracting “out,” Bernardo says.
Those lines are “somewhat blurred” because it depends on which party a labour board considers to be the employer: the company or the subcontractor, which is essentially the labour supply firm, he says.
“The test most often given the greatest weight is which party exercises direction and control over the employees while they are performing the work?” he says.” It’s a different type of arrangement but a way for companies to find labour cost savings without affecting the collective agreement.”
It’s an arrangement employers need in a competitive global economy, according to Yves-Thomas Dorval, president of the Quebec Employers’ Council.
“One of the most important things for employers to have is flexibility to adapt to production costs,” he says. “When you guarantee a floor of employees, you remove this flexibility.”
Labour lawyer Jitesh Mistry of the Vancouver firm Black Gropper disagrees.
“This is a backdoor way of chipping away at the bargaining unit,” he says. “If Rio Tinto keeps doing this, there will be no union in 40 years.”
The global competitiveness argument doesn’t add up either, he says.
“A lot of these principles have been there since the 1970s and employers wanted to get around unions then,” he says. “While there are nuances, the fact is this kind of dispute over what collective agreement language means and how much the bargaining unit can be protected is longstanding.”
And, in the absence of express collective agreement language, “the jurisprudence is not often on the union’s side,” Mistry adds.
However, unions will be faced with more of these pressures as the wave of retiring baby boomers peaks in the near future, he predicts.
“I suspect many employers have realized this,” he says. “And what that means for workers depends on the labour relations of the province.”
While Bernardo agrees this is not a new debate, he questions whether replacing retiring workers with workers supplied by a subcontractor could really be considered union busting.
“What percentage of people in the bargaining unit would retire on a yearly basis? I suspect it would be small, therefore, by definition, this is very much a long-term process,” he says.
Dorval characterizes this type of strategy as one respectful to present employees while recognizing the future needs of the company.
The debate is really about unions defending their base, he says.
“Unions are seeing a decline in membership so they see this as a threat,” Dorval says. “It’s not necessarily for the protection of members but more for them as their own corporation.”
