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In the Courts: Union loses arbitration over job qualifications at Kitimat smelter

Unifor local argued employer couldn’t bypass seniority and training program to hire already-qualified power engineers
The B.C. Supreme Court in Vancouver

Metals and mining giant Rio Tinto plc (NYSE:RIO) can have more flexibility bypassing union members when tapping certain positions at a B.C. aluminum smelter, a labour arbitrator has decided.

Unifor Local 2301 filed four grievances against employer Rio Tinto over its hiring requirements for two April 2021 power engineer job postings in Kitimat, B.C.

Rio Tinto included fourth-class power engineer certification and a Level 1 water ticket as the minimum qualifications in the job listings.

The four workers at the centre of the arbitration say they should have been awarded the jobs.

The hiring dispute goes back to January 2020, with the original job postings requiring third-class power engineer certification, something the union said was too high, according to a recent decision.

As such, the job posting was replaced with a fourth-class certification requirement.

The union continued to push back, saying employees with a Grade 12 education could apply for the job if they underwent the internal training program.

Rio Tinto argued the fourth-class certification wasn’t a “nice-to-have” qualification but a requirement.

The four workers at the centre of the arbitration met the minimum qualifications for the power engineer learner program run by Rio Tinto, a process that a former chief power engineer at the company estimated takes about 2.5 years.

That includes 12 months to complete the course work, six months of job shadowing and then passing a provincial exam. Afterwards, the learners must then obtain a water ticket, a process that takes 1,800 hours.

Former chief power engineer Quinlan Harris said seeking the power engineer certification and the water ticket at the same time would place extraordinary challenges on the learners.

A 1993 letter of understanding between the company and the union requires the employer to hire for power engineer vacancies by seniority among internal applicants with a minimum Grade 12 education or proof of the fourth-class certification.

The union argued the employer could only hire power engineers in two ways:

One would be to hire the senior internal applicant with Grade 12 completion or the certification course. The other would be to hire external applicants with the appropriate certification, but only in cases of “immediate need.”

“Absent that limited exception, the union asserts [power engineers] must be hired at the learner level and progress through their certifications while working in a [power engineer] learner position in the utilities department,” wrote arbitrator Amanda Rogers.

The union argued the company could get gas treatment centre operators through the power engineer certification process, but “this does not give these employees ‘super seniority’ to post directly into [power engineer] positions ahead of more senior employees who lack the certifications but meet the minimum requirements for the [power engineer] learner program.”

It further argued Rio Tinto should have foreseen vacancies among certified power engineers with enough time to put employees through the learner program so it wouldn’t have to circumvent seniority to ensure it had enough certified power engineers to legally operate.

Rio Tinto’s labour relations manager, Scott Blackman, argued the company was within its rights to set the minimum qualifications for a job and it didn’t believe it needed to amend the letter of understanding to allow those learners from the gas treatment plant to advance into power engineer jobs.

But union president Martin McIlwrath testified that the parties’ understanding was that entry into the utilities department as a power engineer was based on seniority and a Grade 12 minimum.

Ultimately, arbitrator Rogers sided with the employer.

She noted the letter of understanding “does not explicitly state that the learner progression is the only point of entry into the utilities department.”