Workers register win in Long Harbour dispute

Vale denied apparent work-around on labour agreement

Published on February 12, 2013
Tradesmen work on construction of the new nickel processing plant being built by Vale in Long Harbour. — File photo by Joe Gibbons/The Telegram

Correction: The following story states the legal case arose out of the five-day wildcat strike of 2012. In fact, the case arose from a separate strike action at the same site, lasting less than a day, on Nov. 9, 2009. The Telegram regrets the error.

Two tradespeople fired from their jobs working on Vale’s new nickel processing facility at Long Harbour have moved a step forward in their opposition to the dismissals.

A wildcat strike at Long Harbour was held from July 12-17, 2012. After the strike ended, Vale denied the two workers in question access to the site, allegedly because of their involvement.

Since the two were unable to show up for work as scheduled, they were fired by their on-site employer, Pennecon.

The actions resulted in a labour dispute that has made its way to the courts, leading to a decision chastising Vale for what has been suggested as an attempt to circumvent the standing labour agreement.

After being fired, the two employees filed grievances under the collective agreement. The grievances were filed against the Long Harbour Employers Association (LHEA), of which Pennecon is a member.

The LHEA was created to deal with labour issues relating to the megaproject. The construction manager and corporate counsel of Vale are two of the three directors of the association and Vale is considered a controlling member.

In the LHEA’s initial response to the grievances, the employers’ association called for the case to be dismissed, since it came out of an action taken by Vale, “the owner of the property.”

Vale was exercising its right to keep people off the property if it wanted, according to the argument.

The action of denying workers access to the site, the LHEA argued, was not covered by the labour agreement governing the project. Vale, it was noted, is not a signatory to that labour agreement.

The preliminary objection to arbitration was ultimately dismissed.

In response, the LHEA went to the courts, arguing the arbitrator “pierced the corporate veil” by tying Vale to the association and the end-ruling in the case.

On the other hand, from the employees’ point of view, if the argument was accepted, it would allow Vale to circumvent the collective agreement at will. Basically, the company could deny a worker access to the site and claim immunity afterward, if ever confronted with a resulting grievance.

The arbitrator’s decision not to end the case, for the reasons given, was supported by the first judge to hear the facts.

The case was pushed to the Supreme Court of Newfoundland and Labrador Court of Appeal.

In the latest ruling, issued Jan. 23, the arbitrator’s decision not to dismiss was again supported.

“By structuring the LHEA as it did with control vested in Vale, it attempted — as evidenced by the actions it took in this case — to retain control over the labour relations environment without subjecting itself to the obligations imposed by the collective agreement that was intended to govern the site,” stated Chief Justice Derek Green.

“It was a colourable attempt to interfere with the proper operation with the labour relations regime.”

That said, Green also stated the ruling does not add Vale as a signatory to the collective agreement. Instead, the decision states, Vale simply cannot shield itself in the specific way stated.

“The issue before the arbitrator was not whether Vale could be bound, but whether the arbitrator had jurisdiction to determine whether the grievances could proceed against LHEA for breach of the collective agreement,” Green stated.

The wildcat strike at Long Harbour cost the project millions.

As reported by The Telegram, an accusation of contempt of court against the provincial trade union collective and two workers — pressed by the LHEA as a result of the illegal wildcat strike — was discontinued in December 2012.

A spokesman for Vale said he was unable to offer comment on the latest court decision Monday.

There was no response to calls to a representative for Pennecon as of press time.