Construction Industry — Ontario Employment Law
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About Construction Industry
The construction industry in Ontario operates under a distinct and highly specialized framework of employment and labour laws. Because the sector is characterized by project-based work, seasonal fluctuations, and a heavy union presence, both the Employment Standards Act, 2000 (ESA) and the Labour Relations Act, 1995 (LRA) treat construction workers differently than employees in standard industries.
One of the most consequential differences lies in termination and severance entitlements. Under Ontario Regulation 288/01 of the ESA, an individual employed as a "construction employee" is generally exempt from the province's prescribed notice of termination (or termination pay) and statutory severance pay. However, this regulatory exemption does not automatically erase a worker's rights. Unless a worker has signed a legally enforceable employment contract that strictly validates this exemption and limits further rights, construction employees may still be entitled to common law reasonable notice. Because there is no simple formula to determine common law notice, awards can range significantly based on age, tenure, and position.
In the unionized sector, the LRA features an entire section dedicated exclusively to the construction industry. The Ontario Labour Relations Board (OLRB) applies unique rules for certifying construction unions. For example, the OLRB typically relies on a "bright-line test" to determine bargaining unit support, focusing specifically on which tradespeople were physically working on the site on the exact date the certification application was filed.
The technical classification of the work itself is also heavily litigated. The OLRB frequently has to determine whether a crew is performing "construction" (such as building, altering, or installing) versus "maintenance" (routine servicing to preserve an existing structure). This distinction is critical because it dictates whether the strict construction industry labour rules apply to the workers.
Employers and workers in the building trades navigate complex regulatory environments where a misclassified job or an improperly drafted contract can have massive financial consequences. Because the rules are so specialized, anyone dealing with a dismissal or a workplace dispute in this sector should have their specific circumstances reviewed by a qualified professional to fully understand their legal standing.
Frequently Asked Questions
Are construction workers in Ontario entitled to severance pay?
Under the ESA, "construction employees" are generally exempt from minimum statutory termination pay and severance pay. However, unless they have a valid employment contract stating otherwise, these workers are frequently still entitled to reasonable notice under the common law, which can amount to significant compensation.
When should someone in the building trades consult a lawyer about getting fired?
Because the statutory exemptions often mislead workers into thinking they are owed nothing upon termination, construction employees should have a legal professional evaluate their dismissal immediately to determine if they can claim common law damages.
What is the difference between construction and maintenance work under Ontario law?
The Ontario Labour Relations Board distinguishes construction from maintenance based on the nature of the work. Construction typically involves adding to, altering, or significantly repairing a structure, whereas maintenance involves routine tasks designed to preserve an existing structure's functionality.
How does union certification work on a construction site?
The OLRB generally uses a "bright-line test" for construction union certification. This means the Board looks strictly at the workers who were actually performing bargaining unit work on the specific date the union filed its application, rather than the broader payroll.
Can my employer open a new, non-union company to do the same construction work?
Under the Labour Relations Act, this practice—often called "double-breasting"—is heavily scrutinized. The OLRB can issue a "related employer" declaration, binding the new non-union entity to the existing collective agreement to prevent companies from dodging their union obligations.
Common Scenarios
- A framing carpenter is let go after working exclusively for one homebuilder for six years. The builder refuses to provide termination pay, citing the ESA construction exemption, but the carpenter pursues a common law claim for wrongful dismissal because they never signed an employment contract limiting their rights.
- A crew specialized in the re-lining of aging sewer pipes seeks to unionize. They face a legal battle at the OLRB when their employer argues their work is "maintenance" rather than "construction," which would completely change the rules governing their union certification.
- A unionized commercial drywall contractor attempts to bid on residential projects using a newly incorporated, non-union numbered company. The union files an application at the OLRB claiming the two entities are a common employer being used to bypass collective agreement wages.
- During a union certification drive on a busy condominium project, a dispute arises over the "bright-line test" because several tradespeople were sent home early due to weather on the exact day the union submitted its application to the OLRB.
What You Should Know
- Construction employers cannot rely solely on the ESA exemptions to avoid paying severance; they must implement carefully drafted employment contracts to legally restrict an employee's common law entitlements.
- If you are involved in a unionizing effort on a job site, keep meticulous records of exactly who is physically working, and what specific tasks they are performing, on the date the application is filed.
- Keep a daily log of your job duties; if a dispute arises over whether you are a construction employee or a maintenance worker, the specific physical tasks you perform each day will be the deciding factor.
- Never assume that because you work in the construction trades you are legally owed nothing upon termination; always have an employment lawyer scrutinize the nature of your role and hiring terms.
Featured Cases
Labourers’ International Union of North America v Capital Sewer Services Inc.
2023 ONSC 3527 (CanLII) · 2023-06-20Judicial Review: OLRB Construction vs Maintenance Certification
This is a judicial review of an Ontario Labour Relations Board decision concerning the certification of a bargaining unit for workers performing cured-in-place-pipe re-lining of sewer pipes. The Divisional Court examined whether the Board reasonably classified the work as maintenance rather than construction under the Labour Relations Act, 1995. The court applied the standard of review reasonableness.
International Union of Operating Engineers, Local 793 v 1476247 Ontario Ltd.
2023 ONSC 3481 (CanLII) · 2023-06-09Labour Relations: Final Offer Vote & Pattern Agreements
This is a judicial review of a decision by the Ontario Labour Relations Board concerning collective bargaining in the construction industry. The Divisional Court examined whether the Board erred in law by requiring the union to object to a Minister's direction for a final offer vote, acted unreasonably in ordering the execution of a pattern-breaking agreement, and breached natural justice through its expedited process under section 100 of the Labour Relations Act, 1995.
T. v. Ontario Labour Relations Board
2021 ONSC 1259 (CanLII) · 2021-05-31Judicial Review: Related Employer Declaration
This is a judicial review of an Ontario Labour Relations Board decision declaring the applicant a related employer under the Labour Relations Act, 1995. The Divisional Court examined whether the Board's decision was reasonable, considering the legislative intent, the applicant's personal circumstances including bankruptcy and injury, and the standard of review established in Vavilov.
Brookfield Multiplex Construction Canada Limited v. Labourers’ International Union of North America
2018 ONSC 5824 (CanLII) · 2018-10-01Judicial Review: OLRB Certification Decision Upheld
This is a judicial review of a certification decision by the Ontario Labour Relations Board (OLRB) concerning a union certification application for construction labourers. The employer challenged the certification on grounds of employee status and the exclusion of evidence, arguing the OLRB fettered its discretion and denied natural justice. The Divisional Court upheld the OLRB's decision, finding its application of the bright-line test for bargaining rights and its policy of excluding post-application date evidence were reasonable.
Carpenters and Allied Workers, Local 27 v. Riverside Door & Trim Inc.
2017 ONSC 6057 (CanLII) · 2017-10-12Judicial Review: Union Certification Dismissed as Out-of-Time
The Divisional Court dismissed an application for judicial review challenging the Labour Relations Board's decision to dismiss a union certification application as out-of-time. The court found the Board's decision reasonable, its refusal to amend the filing date justified by material prejudice to the employer, and its use of written submissions procedurally fair.
Nadalin Electric v. International Brotherhood v. Ontario Labour Relations Board
2014 ONSC 1324 (CanLII) · 2014-02-28OLRB Certification of Construction Bargaining Unit
An employer sought judicial review of the Ontario Labour Relations Board's decision to certify a union as the exclusive bargaining agent for employees, specifically disputing whether the work performed constituted construction industry work. The Divisional Court applied the reasonableness standard to review the Board's interpretation of the Labour Relations Act, 1995.
Thomas Fuller Construction Co. Limited v. Labourers’ International Union of North America
2013 ONSC 2627 (CanLII) · 2013-05-08Judicial Review: Union Certification in Construction
This is a judicial review of the Ontario Labour Relations Board's decision upholding its practice of accepting union membership cards signed by laid-off employees on the application date for certification purposes. The Divisional Court applied a reasonableness standard of review, considering whether the Board's interpretation of the Labour Relations Act was within a range of reasonable outcomes and aligned with the statutory goal of facilitating collective bargaining.
Universal Workers Union (Labourers’ International Union of North America, Local 183)
2008 CanLII 68145 (ON SCDC) · 2008-12-19A judicial review application concerning labour relations and union certification in the construction industry.
International Union of Bricklayers and Allied Craft Workers, Local 7 v. Operative Plasterers, Cement Masons, Restoration Steeplejacks International Association of the United States and Canada, Union Local 598
2007 CanLII 11710 (ON SCDC) · 2007-04-12A judicial review concerning a jurisdictional dispute between two construction trade unions regarding work allocation or bargaining rights.
S. v. A. Potvin Construction Limited
1999 CanLII 1473 (ON CA) · 1999-06-17Wrongful Dismissal: Construction Worker Custom of Trade
This is an appeal from a trial decision in a wrongful dismissal action involving a construction worker. The Court of Appeal addressed whether the custom of the trade and exemptions under the Employment Standards Act precluded a common law claim for reasonable notice, upholding the finding that no notice was reasonable due to the seasonal nature of the industry. The court also reduced the defendant's costs award from solicitor and client to party and party scale.
S. v. A. Potvin Construction Ltd.
1997 CanLII 12420 (ON SC) · 1997-10-01Wrongful Dismissal in Construction: Claim Dismissed Due to Industry Custom
A wrongful dismissal case where a long-term finishing carpenter claimed damages after being laid off without notice or severance pay. The court dismissed the claim, finding that industry custom in the non-union residential construction sector precluded entitlement to notice or severance pay, despite statutory and common law considerations.
Re City of Toronto and Carpenters' District Council of Toronto and Vicinity
1980 CanLII 1894 (ON SC) · 1980-01-08Union Certification: Municipal Carpenters Judicial Review
This is a judicial review proceeding concerning the certification of a trade union for municipal employees. The court examined whether the Labour Relations Board's interpretation of the statutory definition of the 'construction industry' was patently unreasonable and whether the Board adhered to principles of natural justice.